Category Archives: Zambian Law

With Forked Tongues: Why Chibesakunda’s Majority Ruling in Attorney General v. Mutuna & Others is Flawed

Posted on May 15, 2013 | 4 Comments
Zambia's Acting Chief Justice Lombe Chibesakunda - 2013

Zambia’s Acting Chief Justice Lombe Chibesakunda – 2013

By E. Munshya wa Munshya

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

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

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

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

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

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

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

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

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

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

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

I am of the view that the rule of interpretation was not at issue in this matter. The issue was not whether the meaning of Article 98 was ambiguous or not. What was at issue was comparative constitutional law. The question should have been whether Article 98 and Article 91 could be interpreted harmoniously or not. Coming to any conclusion was not going to be dependent on “natural or even grammatical” meaning of any text. And in fact, I am of the opinion that the “purposive interpretation method” would be more helpful though in resolving the interplay of Article 98 and Article 91. The purposive interpretation looks at the wider context of law and seeks to interpret constitutional texts in ways that give effect to wider concepts and fundamentals of the law. I must return to this latter.

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

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

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

The next problem and perhaps the most controversial of them all, is the doctrine that Chibesakunda seemed to have invented. The idea that the constitution has put up the President to be the “guard of the guards.”  Under this doctrine, while Article 91 provides for such avenues as the implementation of the Judicial Code of Conduct, the other avenue by which judges can be kept in check, according to Chibesakunda, is by the President using his “discretionary” powers under Article 98. According to the court:

“It must be an equally democratic tenet to enshrine in the Constitution the limited checks on the Judiciary by the Head of State through the establishment of tribunals where the President receives credible information.”

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

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

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

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

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

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

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

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

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

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

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

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

The next problem with the Supreme Court ruling is couched in very interesting language. According to Justice Chibesakunda:

In order to guard jealously the sanctity of our Constitution, we cannot give Constitutional provisions a meaning that may impeach the explicit, implicit and clear language used. 

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

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

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

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

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

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

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

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

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

(c) 2013. This article is not intended to provide legal advice. Only members of the Zambian Bar can provide specific legal advise on questions raised in this article.

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Bombasa Fyapena: Why We Must Not Blame the Law When Our Politics Go Berserk

Posted on March 21, 2013 | 4 Comments

By Munshya wa Munshya

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

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

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

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

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

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

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

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

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

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In White & Black: Why Guy Lindsay Scott Satisfies Article 34(3)(b) To Stand as President of Zambia

Posted on March 19, 2013 | 6 Comments

Guy Scott1
By E. Munshya wa Munshya
 
Article 34 of the Constitution of the Republic of Zambia 1991 (as amended in 1996) contains the notorious “presidential parentage” clause, which among other things states that for one to be president of Zambia both parents should be “citizens of Zambia by birth or descent.”
Following questions that have been raised concerning the eligibility of Zambia’s vice-president Hon. Guy Scott on whether he qualifies to hold the office of vice-president or whether he qualifies to stand for the office of president, I wish to conduct an exegetical study of current Zambian constitutional law. This study will show that if Article 34 is read together with the Supreme Court’s ruling in Lewanika and others v Frederick Chiluba, Guy Scott and many others racial minorities in Zambia, would qualify to stand for the office of President of the Republic.
 
In the context of a republic such as ours, a constitution is the supreme law of the land. Constitutional supremacy means that the constitution is the tenet by which all institutions of government are governed. It also means that any law made by the legislature that is inconsistent with the Constitution can be struck down. The role of striking down a law that is inconsistent with the constitution is a preserve of the judiciary. In our context, it is the High Court and the Supreme Court that have the powers to declare any given law null and void to the extent that it violates  the constitution. However, the Zambian courts do not have the powers to strike down any article in the constitution. The only power they have with regard to the constitution is the power to interpret it. The courts also have the power to arbitrate on questions of constitutional importance. The extent to which the power to interpret actually goes into questioning or even striking down a constitutional article is a philosophical one. All lawyers and jurists within the common law systems at least would agree that the consequence of judicial interpretation sometimes does go into judicial legislation. In other words, even if judges claim to only be interpreters of the law, the consequence of their interpretation might lead to subtly altering the law. This argument should be left for latter, as it is beyond the scope of present inquiry.
 
The consequence of judicial interpretation implies that a constitution like we have in Zambia is derived from several sources. First, our constitution is derived from a written physical document, which was passed by our parliament in 1991 and amended in 1996. What that document contains is our constitution. However, that document alone does not constitute Zambian constitutional law. A correct view of the constitutional law of our Republic, therefore, should be found in that document as well as rulings of the High Court and the Supreme Court that have interpreted some sections of that constitution. It is important to note here that Zambians should pay particular attention to judicial rulings because they as well as the constitutional document comprise the constitution of the Republic of Zambia.
If someone therefore asks you what the constitution says about “presidential parentage” you would be in order to quote Article 34 (3) (b). However, if you have to correctly interpret this article then you must refer to the rulings of the courts on this matter. 
 
Specifically, then, what this means is that Article 34 (3) (b), the famous presidential parentage clause, should be interpreted within the ambit of judicial rulings. But why are judicial rulings important? First, judicial rulings are important because they become law. In law, through the principle of judicial precedence, when a higher court in a hierarchy rules on a matter all lower courts are supposed to follow that precedence. Consequently, what the higher courts rules on a matter becomes law with regard to that matter under consideration. Second, court cases are important because they show the development of our laws and the constitution. Third, judicial decisions are important because constitutionally, it is the judges who are final arbiters in legal, equitable and constitutional matters. Every lawyer or jurists is supposed to pay particular attention to these rulings.
 
This brings me to Article 34 (3) (b). What it says seems simple:
A Zambian presidential candidate must have both parents who are Zambians by birth or descent.
But the next question is, what does this mean? Well this article can mean different things to different people. This article contains some concepts or ideas that we take for granted but indeed would require a tome to interpret. Concepts such as “parent”, “birth”, “descent”, or even “Zambia” could mean different things to different people. But if we are to remain faithful to the rule of law, then we must defer to the courts a legal interpretation of these concepts. Further, If we are to remain faithful to the rule of law in Zambia then we must take what the courts have ruled on this matter as the correct interpretation of the law.
 
The meaning of Article 34 (3) (b) was adequately provided in the Supreme Court case of Lewanika and others v Frederick Chiluba. In consistent with the constitutional doctrine of stare decisis it is important that lawyers and jurists give adequate respect for this ruling for it helps us interpret the constitution. In fact, Chiluba is a constitutional milestone.
 
The Chiluba case is an important constitutional case. Since the Supreme Court has not reversed it, it remains law and is consequently part of Zambia’s constitutional law. But what was this case all about? In 1996, the Zambian parliament amended the Zambian constitution and among other things included the “presidential parentage” clause in the constitution. At that time, it was widely believed that parliament passed that law to disqualify President Kenneth Kaunda from standing since Kaunda’s parents are believed to have come from present-day Malawi. Indeed in the 1996 elections, Kaunda boycotted the elections and urged his UNIP party to abscond too. Chiluba and his MMD party contested the 1996 elections and other parties that include Dean Mung’omba’s party and Agenda for Zambia a party led by Inonge-Mbikusita Lewanika and his brother Akashambatwa. These elections were conducted on the newly amended constitution.
After the elections, however, Chiluba won. He beat his closes rival Dean Mung’omba by a wide margin. Lewanika and others petitioned the Supreme Court asking the court to overturn Chiluba’s election as president. They contended among other things that Frederick Chiluba could not be president of Zambia because he did not satisfy Article 34 (3) (b) of the Constitution of Zambia. Lewanika and others contended that they had evidence that Chiluba was not born in Zambia and that at least one of his parent (particularly his father) was not Zambian at all.
The ruling of the Supreme Court on this matter is very significant because in it, the court interpreted Article 34. Additionally, in this ruling the court even went to the extent of implicitly taking the unusual route of criticising parliament’s law making rationale and logic. For those who know constitutional law, this criticism is indeed remarkable and quite unusual. But in unpalatable language, a full bench of Supreme Court held that through Article 34 parliament had created problems for Zambians in the future. And considering what is happening now barely a decade after the ruling, the Supreme Court judges indeed were prophetic.
 
First, the court held that a Zambian like Chiluba would still satisfy Article 34 even if he were born in a neighbouring country like Congo DR. If it were shown that Chiluba was a British protected person by the time of his birth and that he “ordinarily” resided in Zambia at independence, he would satisfy the requirement of being a Zambian by birth or descent. Using this rule—it means that all those people like Kenneth Kaunda and Guy Scott who were ordinarily in Zambia at independence and were British protected persons satisfy the requirement of being “Zambian by birth or descent.”
 
Second, the court had identified serious problems with the requirement that a presidential candidate’s parents should be Zambians by “birth or descent”. The Supreme Court Justices remarked that this law would present serious problems for the future. In essence they ruled that, this article couldn’t apply to Zambians whose parents were born before 1964—before there was a Republic of Zambia. Essentially then, people like Chiluba (born 1944), Michael Sata (born 1944), Rupiah Banda (born 1943), Guy Scott (born c.1940) and or Kenneth Kaunda (born 1924) cannot produce Zambian parents. This is because by the time that the parents of these people were born in the 1800s, there was no legal or constitutional entity known as Zambia. As such, Banda, Kaunda, Guy Scott, or Sata cannot produce parents who are Zambian by “birth or descent.” Sata’s father or Rupiah Banda’s father were not born in Zambia, and they were not descended from Zambia—Zambia itself being an entity born in 1964 and whose citizenship requirements were set out in the 1963 constitution.
 
Third, the Supreme Court then addressed a very interesting phenomenon that indeed would apply to Guy Scott. How does Article 34 apply to a white Zambian? In clear language the Supreme Court ruled that satisfying the articles of the constitution have nothing to do with the colour of one’s skin, race or tribe. In fact, the ruling even went to give an example of an ethnic Chinese. Essentially, the court ruled that if a Chinese was ordinarily resident in Zambia in 1964 and acquired Zambian citizenship at independence Article 34 should not bar him from standing for the office of president. Additionally, in a rather comic way, the Chinese example was again used—the Supreme Court painted a hypothetical situation and said that an ethnic Chinese child born in Zambia post-1964 but who gets adopted by black Zambian parents would still qualify since he too can claim that his parents were Zambian by birth or descent. This made the Supreme Court Justices to ask a rhetorical question, so which “parentage” is parliament talking about here? Is it biological or is it adoptive parentage. From the perspective of the judges clearly Article 34 was rather unimpressive.
 
Keeping with the arguments above, it is my conclusion that notwithstanding Article 34, Hon Guy Lindsay Scott can legally satisfy the requirement of Article 34 and can in fact serve as President of the Republic of Zambia. Unless overruled, the case of Lewanika and others v Frederick Chilubais law and therefore applies to Guy Lindsay Scott.
 
The Attorney General of the Republic of Zambia is therefore wrong at law by advising that Guy does not meet the requirements of Article 34. Clearly, if Article 34 were read with the ruling of the Supreme Court, the Attorney General would come to the same conclusion as I have done.  Guy Scott himself has equally concluded the wrong way by claiming that he cannot be President of Zambia. Nothing is further from the legal truth; in fact according to law he can and does satisfy the requirements.
If Guy Scott decided to run for Zambian president, there should be no law that can bar him. In white and black, a white man can rule Zambia.
Guy Scott2

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Sound At Law: Why Speaker Matibini Was Right to Ignore the Bombasa Injunction

Posted on March 17, 2013 | 25 Comments

RB

By E. Munshya wa Munshya

On Friday, 15 March 2013, the Zambian parliament debated a motion that sought to remove the presidential immunity enjoyed by former president of Zambia, Dr. Rupiah Banda. The motion passed by 80 votes, with most of the opposition members of parliament staying away from the proceedings.

A day earlier, on Thursday, lawyers of the former president had successfully obtained an injunction from the High Court which sought to stop parliament from proceeding with the motion of removing Rupiah Banda’s immunity until the case had been disposed of in the courts of law. When the matter came up in parliament, Speaker Matibini ruled that he could not follow the injunction because it was irregularly issued. Among reasons given by Speaker Matibini is that “parliament enjoys protection of its internal processes, and these processes cannot be subjected to judicial interference.” I will argue in this article that Speaker Matibini’s position is sound at law.

Separation of powers is the cornerstone of the Zambian democracy. In its simplest form, government power is divided between three branches of government namely, the executive, the legislature and the judiciary. All the three arms of government derive their power from the constitution. Article 1(4) states that “this Constitution shall bind all persons in the Republic of Zambia and all Legislative, Executive and Judicial organs of the State at all levels.” As such, the three arms are not only creatures of the constitution but they are also supposed to all be bound by it. In its basic form, the principle of the separation of powers states that the executive implements executive power and laws, the legislature makes laws and the judiciary arbitrates and interprets the law. Specifically, Article 78(1) states the following about the powers of parliament:

78 (1) Subject to the provisions of this Constitution, the legislative power of Parliament shall be exercised by Bills passed by the National Assembly and assented to by the President.

For the legislature to make laws freely, it should enjoy certain privileges and immunities derived from both the constitution and the common law (Such as Article 87 of the Zambian Constitution). Among these immunities and privileges are that the members of parliament should be able to debate freely without fear of repercussions from outside parliament. It is this fundamental doctrine that grants immunity to debates carried out by members of parliament while in the House. Additionally, parliament in its law making functions, works like a legal entity on its own, with internal disciplinary procedures. For example, no police can access National Assembly grounds without consent from the Speaker. In fact, even if there is a crime committed on parliament grounds, police investigators can only access parliament on invitation from the Speaker.

Another important aspect of parliamentary power is that it has its own internal procedures that cannot be interfered with by a court of law (Article 86 of the Zambian Constitution). For example, parliament has its own rules with regard to how it disciplines its members and how it deals with the law making process. In fact, unless a procedure is enshrined in the republican constitution, parliament can mend and amend its rules as it wishes.

This therefore, comes to the issue of what happened with regard to the injunction against parliament. Parliament was going to debate a motion on removing the immunity of the former president. This motion having been an internal matter of the legislative body could not be subjected to an injunction by the High Court.

Indeed the High Court does have jurisdiction to hear all legal matters and disputes in Zambia. But that power cannot possibly extend to internal procedures of parliament. Article 86 (1) of the Constitution states thus:

86(1) Subject to the provisions of this Constitution, the National Assembly may determine its own procedure.

However, I must here mention some limited circumstances in which the courts might interfere with parliament’s exercise of its powers.

First, the courts might interfere if parliament is exercising power that has not been conferred upon it by the constitution. Since Zambia is a constitutional democracy where the constitution is supreme over all other branches of government, if parliament exercised power that is beyond its mandate that power might be ruled unconstitutional by a court of law. This was the issue in the case of Bright Mwape & Fred Mmembe v The Speaker. In this case, the duo were charged and sentenced by parliament to imprisonment for a case known as “contempt of parliament.” The courts of law ruled that parliament does not have such powers under the constitution to try criminal matters and impose a custodial sentence upon offenders. Clearly, debating to remove the immunity of a former president is not a criminal matter and it does not involve parliament imposing any custodial sentence on an offender.

Second, the courts of law can interfere if parliament does not follow procedure set out in the constitution. This principle here is similar to the one mentioned above. If the law or the constitution specifically mentions that two-thirds of parliamentarians must vote on an issue and parliament ignores this constitutional requirement, the courts might intervene. For example, Article 37(2) prescribes how a motion to impeach a seating president should be passed. According to the constitution the vote to impeach the seating president should be “supported by the votes of not less than two thirds of all the members of the National Assembly.” With this clarity, any move by parliament contrary to this provision is subject to judicial review and reversal. Parliament would have abrogated the constitution if such a motion were passed without the constitutionally prescribed quorum. But where the constitution does not prescribe any specific procedure – it then remains for parliament to take its own procedures over such matters. In that regard then, the courts of law would not intervene or interfere.

Third, the courts of law can interfere if parliament enacts a law that is contrary to the constitution. Zambia practices a constitutional supremacy system. If parliament went against the constitution to enact a law that is contrary to the constitution the courts would be at liberty to strike it down. Unfortunately, the principle of parliamentary sovereignty has its limitations under the Zambian constitutional regime. This principle however, deserves some elaboration. Parliament can still pass a law that is unfair or ill timed, if this law is done within the constitution, the courts cannot interfere with parliament.

Some are suggesting that the speaker should have deferred to the High Court since the High Court had issued the injunction. They are suggesting that parliament should have respected the High Court. This is probably a misunderstanding of our constitution, parliamentary business does not need to wait for the judiciary to dispose of its cases. If that were the case, then the principle of the separation of powers itself would be in peril. At the heart of the doctrine of separation of powers is the understanding that no one arm of government should interfere with the constitutional exercise of the others’ powers. As was stated by the Supreme Court of Canada in Canada (House of Commons) v. Vaid (2005), “it is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs”.

Some of our fellow citizens are also suggesting that Speaker Matibini displayed double standards by deferring to the courts of law in some matters while refusing to do so when it came to Rupiah Banda’s injunction against the motion. The double standards come from the fact that when some MPs are expelled by their respective parties and appeal to the courts of law, the Speaker always waits until their cases are disposed of by the courts of law. This accusation of Mr. Speaker is unfounded. These are completely different matters. In the case of MPs losing their seats – these matters concern MPs membership to a party that brought them to parliament and is therefore a matter that is outside parliament. Since, it is a matter outside parliament it is important that parliament intervenes only after such matters have been disposed of from outside parliament. However, tabling a motion to strip Rupiah Banda of immunity is an internal parliamentary matter and the Speaker does not need to subject himself to the courts of law even before the matter is tabled for consideration.

However, after the legislature has made its ruling and passed its motion, Dr. Rupiah Banda and his legal team still have recourse to the courts of law to challenge a decision of parliament. That challenge, however, should be based upon constitutional objections. Looking at the precedence from the Frederick Chiluba v Attorney General (2003) case, the Supreme Court is likely to pay no attention to internal procedures taken by parliament in removing Dr. Rupiah Banda’s immunity. It suffices for the courts that parliament exercised its power rightfully accorded it by Article 43 (3). According to this article removal of immunity of a former president in Zambia requires a “resolution of parliament.” When addressing this question in the Chiluba (2003) case Chief Justice Ernest Sakala for the court stated:

It was never the intention of the framers of the Constitution that when the issue of removal of immunity of a former President arises, the former President would have the right to be heard.

Here is what Article 43 (3) states:

(3) A person who has held, but no longer holds, the office of President shall not be charged with a criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any act done or omitted to be done by him in his personal capacity while he held office of President, unless the National Assembly has, by resolution, determined that such proceedings would not be contrary to the interests of the State.

Since, this particular act of “determining” whether criminal proceedings against Rupiah Banda would not be contrary to the interests of the State, can be done by a parliamentary resolution, it remains for parliament to determine what a resolution would comprise. Precedence and parliamentary practice suggests that a parliamentary resolution could be done by simple majority of a parliamentary quorum.

Further, specific articles are relevant to the question of how parliament makes its resolutions. According to Article 84 (1), all questions at any sitting of the National Assembly are determined by “a majority of votes of the members present”. For there to be a valid quorum only a third of parliamentarians need to be present. This is what Article 84 (4)

84(4) The quorum for a meeting of the National Assembly shall be one third of the total number of members of the National Assembly and if at any time during a meeting of the National Assembly objection is taken by any member present that there is no quorum, it shall be the duty of the Speaker or person acting as such, either to adjourn the National Assembly or, as he may think fit, to suspend the meeting until there is a quorum.

As such for a parliament of 158 members it would take only about 52 members to make a quorum and out of these 52 a simple majority of 27 MPs could pass a parliamentary resolution. Whether this is indeed desirable or politically sound is beyond the scope of this present article.

Notwithstanding the provisions of Article 84 it is important to note that the simple majority rule does not apply in specific cases such as the impeachment of a seating president. For those questions, it requires two-thirds of MPs, as I have alluded to above.

It is my opinion that the decision to strip Rupiah Banda is politically flawed. However, I would not for a moment blame the law nor the constitution for it. It was a politically toxic decision for the Michael Sata government to make. But as far as the law and the constitution are concerned, Speaker Matibini was right. We can now watch closely the next legal circus to unfold. Dr. Rupiah Banda’s Bombasa has been stripped; it is now time to see the naked emperor.

In immunity we do not trust.

This article and opinions expressed are not meant to convey legal advice. Those needing specific legal advice on this issue and related matters should consult members of the Zambian bar. (c) Munshya wa Munshya 2013

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Returning Abdul: An Analysis of Justice Mchenga’s Ruling in Simwaya v Attorney General (2013)

Posted on February 12, 2013 | Leave a comment

By E Munshya wa Munshya

On 12th December 2012 Zambia’s Home Affairs Minister issued a deportation order to one Abdul Simwaya. Referring to him as a “foreign national”, Hon. Edgar Lungu declared that Simwaya had become “a danger to national security”.[1] Mr. Lungu further stated, “Government will not hesitate to deport foreigners that breach Zambian laws”. In a December 15 edition of the Zambia Daily Mail (a newspaper owned by the government), Lungu is further reported to have linked Simwaya to “terrorist activities in East Africa and sponsoring political parties in Zambia”.[2]

There were some problems, however, with the assertions from Mr. Lungu. The man the honorable minister had claimed to deport was actually a naturalized citizen of Zambia having been granted citizenship by the Citizens Board of Zambia on 17th October 1986. Abdul Simwaya came to Zambia in 1966 at age 21. He has lived in Zambia since then. He married a Zambian woman and has several children and grandchildren.

After his deportation to Rwanda in December 2012, Simwaya retained lawyer Maureen Mwanawasa and commenced judicial review procedures. Judicial review is a process by which courts check the exercise of executive power. As a court process, it is concerned with the process rather than the merits of the decision taken by a government officer or body. As such, when Mrs. Mwanawasa took up this case – she argued that the Honorable Minister had disregarded the law in first, depriving Simwaya of his Zambian citizenship and secondly, in his subsequent deportation from Zambia. Judicial review can be sought on at least three grounds: illegality, procedural impropriety, and or irrationality/unreasonableness.

A decision of the executive could be illegal if an officer makes a decision outside his powers. For example, if a statute requires Hon Lungu to take electricity to Milenge but neglects to do so but uses the same law to instead electrify Ikeleng’i, this exercise of power would be illegal. Additionally, if a relevant statute empowers a Minister to do something but he does another, his decision could be illegal. When it comes to procedural impropriety, if a statute states the procedure that a government official is supposed to follow before making a decision, but such an officer ignores that procedure, the courts could invalidate that decision.

Irrationality comes in as a third limb to judicial review. Granted that the executive has satisfied both legal and procedural requirements a decision could still be found wanting if it is deemed to be unreasonable or irrational. The law imposes the duty to be reasonable upon all public officers in the exercise of their responsibility. Actually, in the case of the Kachingwe (MMD) v Registrar of Societies & Attorney General (2012), Madame Justice J. Kabuka found that while Mr. Andeleki’s decision to deregister the MMD had met both legal and procedural requirements, the decision was reversed due to irrationality and unreasonableness. As a rule, statute authority is not a license for senseless decision-making.

Simwaya’s advocates led by Mrs. Maureen Mwanawasa argued before Justice Chalwe Mchenga that Hon Lungu’s decision was both illegal and procedurally defective. In his ruling Justice Mchenga agreed. He provided several reasons for his decision. First, referring to Section 22 (3) (d) of the Citizenship Act, Justice Mchenga ruled that the said Act does empower the Citizenship Board to deprive a naturalized citizen of Zambian citizenship, if:

…the registration as a citizen was obtained by means of fraud, false representation, the concealment of any material fact or through some other corrupt practice;

The major problem discovered by Justice Mchenga, however, was that there was no record that the decision to revoke Simwaya’s citizenship was taken by the Citizenship Board. The Board never sat and as such the minister made the decision alone. This was therefore, illegal, to the extent that the relevant statute never empowered Lungu to act in the manner he did. Hon Lungu could not at law be the Citizenship Board. If an act of parliament categorically states who is to carry out a particular function, it would be illegal if someone who is not empowered to do so usurps that function. On this ground Hon Lungu lost.

The second reason is closely connected to the first. Before the Board makes the decision to deprive someone of citizenship – it is required to follow a clear procedure. The Board is supposed to write the person concerned. Within seven days, that individual could request for an inquiry into the matter.

If a person notified in pursuance of the provisions of sub-section (6) applies for an inquiry within such time and in such manner as may be prescribed, the Board shall refer the case for inquiry and report to a commissioner appointed by the Board for the purpose – S. 22 (7) of the Citizenship Act.

Again, Mr. Justice Mchenga found that Mr. Simwaya had responded within the stipulated time and requested for an inquiry to be conducted. However, Hon Edgar Lungu neglected this request. In disregard to Section 22 (7), Edgar Lungu decided to deport Simwaya instead. This was found to be unacceptable. Indeed, if a government official is exercising powers under a statute, he or she is bound to follow procedures delineated in that particular legislation. This applies to a government body such as the Citizenship Board as well. As such, Simwaya’s deportation was illegal to the extent that the Citizenship Board neglected to appoint a commissioner as requested by Simwaya.

It was for these reasons that Judge Mchenga ruled that Mr Lungu’s decision “in his capacity as Chairman of the Citizenship Board is null and void for want of authority.” Additionally, neither the Board nor Mr. Lungu had the authority to “revoke his citizenship because he had invoked his right to be subjected to an inquiry.” As such, Mr. Simwaya was “still a Zambian and the deportation order issued was unlawful.”

Since judicial review is concerned not with the merits of the decision but with the procedures only, there is nothing that stops the Michael Sata government from looking at this matter again. They could follow the correct procedure this time around and eventually deport Mr. Abdul Simwaya. Doing so however, might come with serious political risk.

A jurist once said “I don’t care what the law says until I know which judge is sitting to adjudicate.” This jurist might have been right. There are instances where the law is as good as the judge hearing it. Judges do affect the law and its interpretation. Therefore, it is quite significant that it was Justice Chalwe Mchenga who was called to adjudicate this matter of naturalized citizenship. Just from his middle name of Farai, it could be inferred that he has some Shona, consequently Zimbabwean heritage. Indeed in a nation like ours where some of our citizens are a collection of peoples with heritage from neighboring countries, a definition of who is Zambian and who is not cannot exclude people like Simwaya who have been domiciled in Zambia since 1966 in spite of their confusing origins. As least with a Zambian judge called Farai – the issue of delineating Zambian citizenship based on cultural heritage or tribe or origin might be getting irrelevant by the day.

Simwaya’s story cannot be very far removed from African realities. Lungu and the immigration department claimed that Simwaya had given material contradictory statements about where he was born. When applying for citizenship he stated that he was born in Bukavu in Congo DR, but when applying for an NRC and passport his birthplace was in Bugarama, Rwanda. But considering that Abdul left Congo DR in 1966 at 21 as a Rwandan refugee escaping into Zambia – this discrepancy is not unusual. In colonial Africa, when Abdul was born places of birth and indeed dates of birth became very complex to pinpoint. For example, the distance between Bukavu and Bugarama is only 37 kms, and would take 40 minutes to drive. To put it into the Zambian perspective – a person born in Milenge in 1940 could equally claim Mansa as home. Even if Milenge is considered separate from Mansa most Milengeans conceptually take Mansa as their town too. The distance between Milenge and Mansa Boma is about the same as the one between Bukavu and Bugarama. The issue of country is even more irrelevant. At the time Abdul was born – the idea that Rwanda was conceptually a separate country from Bukavu existed only in the annals of the colonizers and not among the local Tutsi or Hutus.

A 70-year old grandfather should not be deprived of Zambian citizenship simply because they misstated their place of birth. Indeed, had an inquiry been conducted about Abdul Simwaya it could have highlighted some of these discrepancies, difficulties and the implications they may have on many Zambians faced with similar issues. The questions about Abdul could be connected to the wider famous questions of a person like President Kenneth Kaunda. Where was Kaunda born? Was it at Chinsali or was it at his mother’s home village in Malawi. Or does it even matter what he stated about where he was born? What about Chiluba? Was he born in Kitwe, Musangu, or across the river?

The deportation of Simwaya, unfortunately, reflects the erosion of the rule of law in Zambia. Had it been an isolated incident, we could have given the Zambian state a benefit of doubt. But, regrettably, these deportations have happened too many times. At worst – Hon Edgar Lungu’s tenure at the Home office has been plagued by abuses of the rule of law and wanton legal recklessness. Clearly, as stated by Counsel Mwanawasa – Zambia has reached crossroads in terms of the rule of law. If indeed, Lungu cannot get it right on a simple matter such as citizenship, how could the Zambians be confident of this government?

After the hard work of Abdul’s counsel, Maureen Mwanawasa, we all should be happy that at last an injustice has been undone. And as ruled by a Zambian judge known as Farai, Abdul Simwaya will be returning to the sacred soil of our republic. Zambia is the only home he has known since landing on our shores in 1966, way before seventy-five percent of our population was even born.

(c) Elias Munshya, BA, LLB (Hons), MA, MDiv – 2013

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A Major Shoots Himself in the Foot: Why Kachingwe Can’t Win at Law

Posted on December 4, 2012 | 16 Comments

By Munshya wa Munshya

Issues surrounding recent events in the MMD can be analyzed from different angles. However, in this article I wish to concentrate on only one angle. That is whether Major Kachingwe can succeed at law to have the courts invalidate the election of Nevers Mumba as MMD president. It is my opinion that it would be very difficult, in not impossible for Major Kachingwe to succeed at law.

I am quite concerned that in our democracy, the High Court has been called upon to rule on matters to do with internal party disputes far too many times. It should be noted that the courts of law are not the best avenue to resolve political differences. This insatiable appetite for politicians to use courts for each and every of their political squabble is a drain on the meager resources of our judiciary. Indeed, instead of having our judges concentrate on major issues such as crimes and other civil matters or indeed constitutional matters, boggling them down to deal with fine issues of political differences is not just right.

This trend has been encouraged by this entitlement that Zambians, especially, politicians have come to expect. Filled with corruption and stolen splendor, it is not enough that these gentlemen and ladies have so much going well for them, their lack of appreciation manifests itself in their abuse of the court process. The Zambian High Court has seen far too many political bickers – and this must stop.

On that note I must now dwell on the issues of whether Major Kachingwe can succeed or not. But in order to do so, I s should state first of all Major Kachingwe’s version of facts. First, Major Kachingwe alleges that Nevers Mumba being a member of another political party is disqualified from being President of the MMD. Second, that being the case it fell upon him, as National Secretary to act and invalidate the election of Nevers Mumba as MMD President. Third, that if he does not act as National Secretary, the MMD risks being deregistered by the Registrar of Societies. Fourth, that it is within his power to appoint an acting president and in this case, Michael Kaingu should act as president in place of the invalidated Mumba. I will argue on each of these issues raised by Kachingwe.

First, Major Kachingwe argues that Nevers Mumba is a member of another political party and as such he cannot hold membership in the MMD. This question can only be answered by fact. Is Nevers Mumba a member of another political party? Nevers Mumba says he is not a member of any other political party. To prove his point, Kachingwe retrieved records from the Registrar of Societies, which still lists Nevers Mumba as president of the Reform Party. According to Nevers, the Reform Party was disbanded or dissolved and its last returns where filed in the year 2008. In this case, then following Kachingwe’s arguments – the only evidence he has that Nevers Mumba is a member of the RP are the returns. But it has been since established in both common sense and in law that records held by the Registrar of Societies do not necessarily convey present reality. A person does not become a member of a society simply because records at the ROS states so. If indeed those records belong to 2008, they cannot be relevant to the question to be decided today.

Either by mistaken repeated practice or by rampant ignorance, the role that the ROS is playing in internal club matters is increasingly becoming more political and more confusing. Memberships, or directorships of a registered society are deemed to have changed at law, when the said society so decides. This has nothing to do with when the ROS is informed. As with a company, once a board of directors or any appointing authority, as the case may be, changes directors – right at that moment of the change – the said changes are deemed to have taken place. The Registrar plays no legal role in effecting this change. The Registrar as the name suggests only registers and does not determine the legal position of the change. So if Andeleki has records from 2008 and has not been informed that Mumba is no longer president of RP, that Andeleki has not been informed of the change does not invalidate the change.

Second, Major Kachingwe argues that since he is the National Secretary of the MMD it fell upon him to act and invalidate Mumba’s election. This thinking is seriously flawed both at law and at common sense. In order to discuss this matter it is important to note first of all the nature of the MMD as a body.

The MMD is a club. It is registered under the Societies Act. It is not a legal person. It is not a corporation. It is a body of individual members who have elected a board to run the affairs of this club. This board is known as the National Executive Committee. The NEC then delegates its powers to a National Secretary to administer the MMD. As such, policy-making power remains with the board while administrative power is delegated to the National Secretary. Given that the election of Nevers Mumba was conducted after a policy decision from the NEC it becomes impossible for a National Secretary to invalidate the policy decision made by a board. It is not within the power of an operative like Kachingwe to invalidate the actions of his board. The least he could do is to present before the NEC issues that his has seen with its decision. He cannot go it alone and act. On this matter then Kachingwe cannot succeed.

A party president like Nevers, everywhere be it in Zambia or everywhere else in the Commonwealth posses some residual power to lead and offer policy direction for his party. In other words, Nevers Mumba can give speeches and offer guidance as to how the MMD will react to national policy matters. This power can never be conceived as belonging to the National Secretary as well. For example, even with PF, Wynter Kabimba cannot invalidate Sata’s election and what Sata says offers policy direction for the PF and not what Wynter says. The same applies to Winston Chibwe in UPND. What Hichilema says serves as a policy directive while Chibwe’s words cannot be held in the same esteem. An operative like a national secretary must always defer to his principal. It is a simple principle.

What then are the consequences of Kachingwe’s action? Indeed, without a policy decision from the NEC that reconsiders the position of Nevers Mumba – Kachingwe cannot unilaterally act. He does not have that power.

Third, Kachingwe argues that if he did not act, then the MMD risked being deregistered by Andeleki. Obviously, Kachingwe’s thinking here does not smell good. Actually it stinks of corruption, unreasonableness and utter silliness. I must digress here a little bit.

Clubs and societies in Zambia, are customarily said to have “constitutions.” This is what deceives many of our people into thinking that a club constitution acts just like a republican constitution. This is obviously not the case. The law recognizes that clubs exist for a common purpose. Clubs then come up with its rules and regulations of how it will govern itself. However, it still remains with the members of the group and indeed with its board to change and modify its rules as it goes. The courts of law cannot force a club to enforce its own rules if that club changes or refuses to enforce some rules. At one time Justice Nyangulu ruled in the case of UNIP provincial party membership. Judge Nyangulu read the UNIP constitution so strictly that he invalidated the election of an Eastern Province provincial chairman because he was resident in Lusaka contrary to the UNIP constitution. On appeal, the Supreme Court reversed Nyangulu. Again this was due to a principle at law, that clubs should be able to run their affairs without subjecting them to strict legalities. Indeed, not withstanding what a club constitution says, if members or any group so gathered and recognized by the said society decide to suspend particular rules – the club is within its right to do so.

In fact, that is what happened when Mwanawasa and the NEC decided to freeze the position of Vice-President. Not withstanding that the MMD constitution provided for a position of Party Vice-President, the MMD sitting as a board decided to suspend its own constitutional provision by adhering to its president’s policy direction to not elect a vice-president. The lesson then is still valid today. Anyone who could have taken Levy and the NEC to court over the matter was not going to succeed.

In this case then, if the NEC has now decided to have an election where Mumba gets elected as MMD president, Kachingwe cannot force the NEC to follow its own rules. The law is as simple as that and there is precedence to this effect. Kachingwe could not unilaterally act.

Fourthly, Kachingwe’s actions are so obviously wrong that he even went ahead to appoint an acting MMD president. This has never been heard of. The National Secretary of any political party cannot unilaterally act to appoint who his superior is going to be. In the MMD hierarchy, just as is the case with other parties, the president is the principal, then the two vice presidents, then the chairman and his deputy and then the secretary and his deputy and so on. However, in the event that a president is invalidated, it would be the NEC to decide who should act as president. Kachingwe’s decisions are marred with an invisible hand that it would be interesting to know why he had pick on one of the veeps to be an acting president. I would not be too wrong to imagine that Kaingu was obviously unimpressed by this dubious gesture.

Fifthly, Kachingwe argues that his has power under the MMD constitution to discipline MMD members. Definitely, the MMD National Secretary does have so much power. But unfortunately, that power does not include disciplining unilaterally, his superior. Nevers Mumba is Kachingwe’s principal. He couldn’t have that power to discipline Nevers.

For his obvious amateurish behaviour, I am concerned that Kachingwe received a beating for it. All should condemn violence of any kind. And definitely seeing a grand father hauled out by cadres was a sorry sight to see. I wish him very well as he recovers from his beating. I also wish the police all the best as they apprehend the suspects and bring them before the courts of law. But for now, Kachingwe is in court and obviously; I can predict that he will receive another beating – at the hand of the law this time around. My only prayer and hope is that it does not hurt too much.

Note: This article is not intended to offer any legal opinion. It is intended for academic and political debate. For specific legal advise, Zambians are encouraged to consult members of the Zambian Bar.

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Citizen Clive: The Irony of a “Stateless” Professor

Posted on November 22, 2012 | 1 Comment

To begin with, I must mention that I belong to that school of thought which believe that the current law in Zambia that deprives Zambians from acquiring dual nationality should be amended. I am of the opinion that we so amend the constitution as to allow for dual nationality. This is the right thing to do. Additionally, I am aware that unfortunately, until the law is amended we should not shy away from pinpointing the abrogation of the law as it stands now. I am aware that the law sometimes is inflexible and political realities sometimes demand that we make amends to the laws as we go. However, the law is such that in the case of Professor Chirwa he could potentially be stateless. I will recap this argument and then use several authorities in this regard.

First, Professor Chirwa was at one time a bonafide citizen of our republic. At some point in his life, however, he exercised the right and freedom to become a citizen of the United Kingdom. At the time that he so decided to become a citizen of the UK, he by operation of law ceased to be a citizen of the Republic of Zambia. This is what Article 9 of the Zambian constitution says.

“Article 9. (1) A person shall cease to be a citizen of Zambia if that person-
(a) acquires the citizenship of a country other than Zambia by a voluntary act, other than marriage; and
(b) does any act indicating that person’s intention to adopt or make use of any other citizenship.”

CAP 124 (19) (2) of the Laws of Zambia reaffirms the constitution by declaring, inter alia:

“Any citizen of full age who by voluntary act, other than marriage, acquires the citizenship of a country other than Zambia, or who does any act indicating his intention to adopt or make use of such other citizenship, shall cease to be a citizen on the date of his acquisition of the citizenship of that other country.”

In view of this provision, Professor Chirwa ceased to be a citizen of Zambia the moment he pledged allegiance to the Queen of England and became a British citizen. This position, is unfortunately the present law.

Second, the case of the Ugandan Indians does not apply in this case. The case of Thakrar v Sec of State (1972) was not about a person like Professor Chirwa. It was about Indians who came to Uganda as British Overseas citizens. As British Overseas citizens, Britain was obligated to protect them after they were expelled by Idi Amin. Unfortunately, Professor Chirwa was not a British Overseas Citizen. Indeed, the Supreme Court litigated this matter in the great case of Lewanika and Others v Frederick Chiluba (1998). In this Chiluba case, the court held that no black Zambian could claim to have been a citizen of Britain based on the status of Northern Rhodesia as a Protectorate of Her Majesty the Queen. In any case, Professor Chirwa left Zambia well after Zambia had gotten independence and as such, his status as a citizen of Zambia cannot be covered by any subsisting colonial laws. He left Zambia as a citizen of Zambia based on the Zambia Independence Act and its accompanying constitution. As such, he cannot claim it in any other way. The Ugandan case simply does not apply to him.

Third, the facts are clear. Let me reiterate them here. Professor Chirwa was a Zambian citizen but then he lost Zambian citizenship after he acquired British citizenship. To regain Zambian citizenship he has to follow through the law and re-apply to the Citizens Board of Zambia. If he does not do so, he potentially opens himself up to problems when this government has left office. I must add here another issue connected to the ever precarious concepts of Zambian citizenship. The one to do with President Kenneth Kaunda’s citizenship. Unfortunately, just like the Ugandan case, the Kaunda case cannot help Professor Chirwa. President Kenneth Kaunda was declared “stateless” by the Ndola High Court. On appeal, the claimants (Mr. Katyoka and Mr Mushota) together with the Attorney General Bonaventure Mutale decided not to defend the High Court ruling in the Supreme Court. The Supreme Court effectively reversed the High Court decision without actually going to trial. But the Kaunda case raised some important issues which can be distinguished from Chirwa. Kaunda is distinguishable from Chirwa because with Kaunda we were not dealing with relinquishing of Zambian citizenship, obviously with Chirwa the case is that he had relinquished Zambian citizenship when he became a citizen of Britain. Additionally, Kaunda is distinguishable in the sense that it had to deal with status of citizenship at independence, with Chirwa it is about his actions after independence.

Fourth, our laws do in fact allow the President to impute Zambian citizenship on some people which in his opinion warrant such an honour (CAP 124 (13) (2)). If indeed President Michael Sata has so decided then he will issue an instrument in this regard that will so specify granting Professor Chirwa the honorary citizenship as the case may be.

This is what CAP 124 of the Laws of Zambia says. At section 13. “(1) The President may as a token of honour cause to be registered as a citizen any person who in his opinion has done signal honour or rendered distinguished service to Zambia. (2) The President may cause to be registered as a citizen any person not otherwise entitled to or eligible for citizenship of Zambia with respect to whom special circumstances exist which, in the opinion of the President, warrant such registration.”

Fifth, where does being “stateless” then come in? It comes in because Professor Chirwa says he has renounced British Citizenship. If he has done so, without acquiring Zambian citizenship then he could potentially be stateless. Again, I am using “statelessness” here not as a cultural term, but a legal one. Zambian citizenship is a legal status, not a cultural one. You can be a Zambian by culture, but that does not by itself grant you the privilege of legal citizenship. Obviously, Professor Chirwa must become a citizen legally, other than depending upon his cultural or ancestral root to Zambia. He by his own will and volition became a citizen of Britain. He cannot be a Zambia at the same time as he is a citizen of Britain. If indeed he has repudiated British citizenship he must now apply to the Citizenship Board for restoration of his Zambian citizenship. As stated above, we are saying this with full understanding that President Sata may use his powers to confer citizenship upon Professor Chirwa, but until he does so legally, Professor Chirwa is in a precarious situation.

Lastly, we continue to appeal to all Zambians to continue pressuring the government to push through reforms to begin recognizing dual nationality. There are so many former Zambians like Professor Chirwa all over the world who want to come to Zambia, but when doing so they do not want to be treated as foreigners at the Airport. There are so many former Zambians who are tired of carrying the Zambian passport deceptively knowing full well that they have lost Zambian citizenship.

Note: Opinions written in this article are not meant to convey legal advice. Zambians seeking specific legal advice on this issue should consult members of the Zambian Bar.

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