Category Archives: Zambian Political Theology

When a Constitution Forgets: A theory of interpreting Zambia’s constitution

E. Munshya, LLM, MBA, M.Div.

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Elias Munshya, LLM, M.A., MBA, M.Div.

Surprise, surprise. Now that we have read the new constitution we are quickly realising just how much of a blessing, and a controversy it has become. I would be surprised if a constitution did not evoke opposite emotions and everything in between. Beginning from the Grade 12 qualifications to the omission of deputy minister positions, a debate is raging about the true meaning of many articles and provisions in this amended constitution. The battle lines are drawn. Honourable Chishimba Kambwili is undertaking a tour of the country to find out what the people think about the new constitution. Kambwili wants to propose more amendments to the amended constitution after he receives the feedback from the country. Just how that actually works, nobody knows. Current deputy ministers are in some sort of a limbo. They really do not know what it means now that the 2016 constitution has no direct provision of their existence. Civil servants are equally confused. The constitution states that civil servants who want to run for political office must wait three years after they leave the public service to be eligible. His Excellency Emmanuel Mwamba, as an example, cannot run in the next elections due to this ban. Last week I offered my opinion on the Grade 12 qualification. My interpretation of the Grade 12 requirements is that it is actually just for show and practically means nothing much. In view of all these issues, how would the High Court or the Constitutional Court look at these and many other issues? Every constitution should be interpreted within the purview of a certain theory of interpretation. I present one such theory.

Common sense is the first key to constitutional interpretation. Before you go about turning pages of the constitutional text, ask your self a very basic question. Am I willing to use common sense in this task? Without common sense you can not understand, apply or let alone interpret the constitution or anything for that matter. Common sense is the first article of every constitution. It is the foundation that must undergird any constitution. Common sense is the first gift of God to humanity.

The second element is that the text of Zambian constitution must be interpreted within the ambit of general principles of constitutionalism even if they are unwritten. In common language, we refer to the letter and the spirit of the constitution. The letter is the text of the constitution itself, the spirit is a collection of years of mostly unwritten constitutional thinking that go with it. These principles are such ideas such as the separation of powers, the independence of the judiciary, and the rule of law. These should then take us to the next point.

The third element of constitutional interpretation in Zambia, is an important presumption: drafters of the written constitution cannot “intend” to insult the spirit of constitutionalism. Here is an example. Constitutionalism entails that the Republic of Zambia must subsist as a political democracy and every text in the constitution must be interpreted in ways that affirm this principle rather than undermine it. If the people of Milenge cannot have among them a Grade 12, the article in the constitution that requires Grade 12 certificates must be interpreted in ways that do not defeat the political subsistence of the Milenge District Council. The municipality must survive. If the drafters drafted into our constitution a Grade 12 requirement that is impossible of performance in Milenge, it is incumbent upon the interpreters of the constitution to cure such impossibility, by giving it creative meaning that gives effect to the bigger picture of political and democratic subsistence.

The fourth element might sound counter-intuitive in view of what I have stated above. The words and phrases in the constitution must be interpreted in their natural meaning. We must not add to the text what the text has not included. For example, we cannot impose deputy ministers into a constitution that has deliberately “forgotten” to include them. Deputy ministers are not an integral part of constitutionalism and neither can they be saved by the principles enunciated above. The 2016 constitution has ignored deputy ministers; we should take the text of the constitution as it is, in this regard. Should we then as suggested by Mr. Tuta Ngulube, go back to parliamentary debates to check for the intention of parliament? Answering this question will lead us to the next point.

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Edgar Lungu

Fifth, the intention of parliament can only be expressed in two ways:  either through the written text, or through the general unwritten principles of constitutionalism. Parliament can never intend to betray constitutionalism; however, its direct intent can only be gleaned from the text of its legislation, not by the debates. It is no use to try and justify the office of deputy minister by going to the debates of parliament during the adoption of the constitution. The text of the 2016 constitution does not provide for deputy ministers. They are not part of the constitution. They cannot be justified as a principle of constitutionalism, so they should not exist in Zambia. President Lungu should fire all deputy ministers as they are in office unconstitutionally.

These principles and many others will be critical to how the Constitutional Court of Zambia  interprets this new gift President Lungu has signed into law. Constitutional interpretation is an orgy of ideas. The principles enunciated above hope to be part of that orgy.

 

Citation: Munshya, E. (2016). When a Constitution Forgets: A theory of interpreting Zambia’s constitution. Elias Munshya Blog (wwweliasmunshya.org) (January 29, 2016)

“Munyaule Nafuti”: Petersen Zagaze and the politics of controversial music

E. Munshya, LLM, MBA, M.Div.

History will be very kind to Petersen Zagaze. I am not a very good music critic, and so this article will not try to critic Zagaze’s music, but his lyrics. No artist has managed to get the ire of the ruling bourgeoisie like he has done. The 2005 single Munyaule was a controversial song. The lyrics clearly disturbed the sensibilities of many. It certainly bothered my sensibilities too. But that is the nature of art. Art is impossible without disturbance. If we are able to control art, then it ceases to be art, it becomes science or other things. In my opinion, the lyrics in Munyaule and its succeeding franchises of Munyaule Nafuti and Munyaule Continuously belong to the same class as the mockery and sexualised innuendos of the music of the great artists of posterity such as Peter Tsotsi Juma’s Muka Muchona and P.K.  Chishala’s We Bushiku Bulalepa. In Muka Muchona, Juma puts words in a man who desires to follow muka muchona to her house to go and play with her chisasa. In we bushiku bulalepa, P.K. Chishala explains how the night gets much shorter and more interesting when a man has a lady companion in bed at night. What Chishala talks about is left to one’s imagination. As expected, though, for a Christian nation like ours, Munyaule came as a shock and a surprise. The state acted swiftly. The song was banned on public radio and the politicians were quick to condemn Petersen Zagaze for corrupting public morals.

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Petersen Zagaze (Pic from Facebook)

The reaction of politicians was not entirely unexpected. The pressure also came from some church leaders who took great exception to Munyaule, a song that out-rightly euphemised sex like no other musician has ever done in Zambia. But a musician can never be judged just by one or two songs. Zagaze used the visibility Munyaule had brought him to highlight several injustices he saw in Zambian politics and the society it breeds. The church was not spared. With a background in the church, Zagaze recounts in his song Amakwebo Mu Church, the travesty that seem to have engulfed the Zambian church. In the song, he visits a church after a long time only to find that the church has now become a market place, selling everything from houses, to cars, and music albums. He then requests, that “Messiah bwelelanso ukwapule nafuti … ama kwebo mu church yafula”. The message in Amakwebo Mu Church is quite appropriate for the Zambian church, particularly the pentecostal church that seem to be experiencing a serious identity crisis. If Petersen Zagaze was ever a prophet, this song is an appropriate warning to the many churches in Zambia, that the church must not abandon its core duty of Christian worship to become a place for “amakwebo”.

Zagaze left the most prolific criticism to the politicians that had moved to ban his 2005 Munyaule songs. In the Job 13:13 song Zagaze stated that the parliamentarians had better things to do in parliament than debate his songs. Calling politicians as “ba mwankole wearing black suits”, he called out their hypocrisy about targeting his Munyaule songs when they themselves had absolutely no morals. The same politicians who were pontificating about morals were “corrupt thieves, selfish and wife batterers.” Zagaze has continued criticising Zambian politicians in his subsequent music, remaining one of the most consistent poets calling political redemption.

According to the biography on the Kora Awards website, Petersen Zagaze, also known as Zaga was born Mukubesa Mundia in Lusaka, Zambia. He came on the Zambian music scene in 2002. From a music career spanning for a decade and a half, he has performed alongside several national and international artistes such as Mainza, Leo Muntu, Danny Kaya, Bruna (Angola), Extra Musica (Brazzaville), Zombo of Abashante (South Africa), Gidigidi (Kenya), Skwatta Camp (South Africa), Mafikizolo (South Africa), Pitch Black Afro (South Africa), Mzekezeke (South Africa), Proverb (South Africa), Nasty D, and the evergreen Amayenge Asoza.

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Elias Munshya, LLM, M.A., MBA, M.Div.

Petersen has now been nominated for a 2016 Kora Award. If he wins, he would join Maiko Zulu who was the first Zambian to win. Maiko Zulu as St. Michael pulled a shocking win in South Africa. Later the Kora organisation, citing a technical mistake, reversed themselves and took the award away from Zulu. Maiko Zulu is now presenting himself as a candidate in Kabwata in this year’s election. Zambians have another opportunity to have another Zambian win the Kora Awards this year. It is only appropriately that this year’s award should go to the controversial Petersen Zagaze. Other Zambian artists who have been nominated in the past include Jojo Mwangaza.

I leave it to those who are more eminent and more learned in music to analyse and critic the music and notes and tones of Zagaze’s music. For me, the lyrics of Petersen Zagaze make him stand out as one of the most influential poetical artists. Zagaze has not won many awards in Zambia even if he is clearly superior to many of the bubblegum musicians popping up in Zambia. But controversy is rarely rewarded. However, after the Zambian music story is written, history will be very kind to the poetical musician who now calls himself, the Honourable Apostle Petersen Zagaze.

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Citation: Munshya, E. (2016). “Munyaule Nafuti”: Petersen Zagaze and the politics of controversial music. Elias Munshya Blog. (www.eliasmunshya.org) (January 29, 2016)

Zambia’s Sugo Fiasco: Interpreting the constitution’s Grade 12 requirement

E. Munshya, LLB, LLM, MBA, M.Div.

In the recent constitution amendment signed by President Edgar Lungu is a provision that is both absurd and confusing. According to Article 70 (1) (d), a person is eligible to be elected as a Member of Parliament, if that person “has obtained, as a minimum academic qualification, a grade twelve certificate or its equivalent”. This provision has sent shivers and panic, no less, among the very parliamentarians that passed the constitution. Some quarters are even suggesting that candidates should produce their grade twelve certificates if they are to stand for political office. I submit that the Zambian courts will have to provide a more creative interpretation of this provision if we are to avoid the mess it has brought. However, today, I just want to dispel a few fears.

Is grade twelve the academic qualification for political office? No, the constitution is clear; a grade twelve certificate is the minimum academic qualification. So a person does not need to produce this minimum qualification if they have a superior qualification.

Can a person have a higher academic qualification if they did not complete grade twelve? Yes, in fact many of our senior judges, lawyers and senior civil servants in Zambia never completed grade twelve as they never went to secondary school. Kenneth Kaunda trained as a school teacher and yet he did not have a grade twelve education. Frederick Chiluba graduated from Warwick University with a Master of Philosophy degree and yet he never had a grade twelve education. It is possible for a person to not complete grade twelve and yet have academic qualifications that are superior to it. If Kaunda, Mainza Chona or Chiluba were to stand as MPs under the current constitution, they would not have to show a grade twelve certificate, all they would need to show are their tertiary qualifications.

How can a person have tertiary education if they do not have secondary education? This is what confuses many. In the real world, it does not take secondary education to do tertiary education. In fact, Zambian universities and colleges can admit students on mature entry status who do not possess a grade twelve education. Those graduates would still have an education that is superior to a grade twelve certificate and can qualify to stand based on Article 70 (1) (d).

Some institutions demand grade twelve even from those with superior degrees, isn’t the constitution saying the same thing? Article 70 (1) (d) does not state that a candidate must have a grade twelve education as well as other education. It simply states the minimum. It can also be noted that the Article is referring to a “certificate”, and not to an “education”. So it is not asking for a grade twelve education, but a grade twelve certificate. A grade twelve certificate can be obtained without twelve years of education and in fact, even a superior qualification can be obtained in its place. While it is true that ZIALE, as an example, demands grade twelve certificate in addition to a bachelor of laws degree in its admission requirements, this is different from what 70 (1) (d) is requiring. With due respect, you cannot interpret the constitution on the basis of discriminatory practices of bodies such as ZIALE or the Nursing Council of Zambia.

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Elias Munshya, LLM, M.A., MBA, M.Div.

Can trades certificate and diplomas qualify as superior to grade twelve education? We might have to wait for a court ruling on this one, but the old myth that trades and vocational education is not academic enough has long been dispelled. Vocational training and the trades are as academic as a university education. All tertiary education in Zambia is superior to secondary education. Education in Zambia is roughly demarcated as follows: primary, secondary and tertiary education, in the level of their superiority. 70 (1) (d) makes secondary education the minimum, meaning all those with tertiary education do qualify to stand. To say that a person cannot have tertiary education unless they have secondary education is as ridiculous as suggesting that for one to have secondary education they must first have primary education. There are clear instances where a person without primary education due to circumstances beyond their control would go straight to secondary education. Trades certificates such as diplomas and certificates in plumbing, cooking, and joinery from a recognised institution of training in Zambia is academically superior to any secondary education.

There is a lot to say about the grade twelve qualification. It is absurd and if it came up before the constitutional court, it will be interpreted very liberally so as to allow more people to qualify to stand as political leaders. It is certainly absurd to demand that councillors in Milenge have a grade twelve certificate when secondary school arrived there only very recently. Let us end here for now and see how this sugo fiasco plays out.

Editorial Note: Elias Munshya holds three degrees in law and is currently undergoing the bar admission process in the jurisdiction of Alberta. Those personally affected by the issues raised in this article are encouraged to consult members of the Zambian bar for legal advice specific to their situation.

Citation: Munshya, E. (2016). Zambia’s Sugo Fiasco: Interpreting the constitution’s Grade 12 requirement. Elias Munshya Blog. (www.eliasmunshya.org).

 

Download Zambia’s New Constitution (as amended)

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Elias Munshya, LLM, M.A., MBA, M.Div.

 

You can download Zambia’s constitution as amended. Please note that the constitution is not necessarily a new constitution but is an amendment of the 1991 Constitution. This is why it is called the Constitution of Zambia (Amendment) Act of 2016.

Elias Munshya, LLM, MBA, M.Div.

Download here. Just click below and you will have it.

  1. Constitution of Zambia (Amendment) Act, No. 2 of 2016
  2. Constitution of Zambia Act, No. 1 of 2016

The Sky was Never His Limit: The life and times of Bishop Banda of Kitwe

 

E. Munshya, LLM, M.Div.

In his 2008 dissertation, theologian and historian Dr. Andriano Chalwe wrote the following about Bishop Sky Zibani Banda: “Banda will be remembered for his generosity.” He was right. Out of the many tributes pouring in about the late Bishop Banda, one theme is very dominant: he was kind and generous servant of the Zambian church.

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Sky Banda of Kitwe

Bishop Banda passed away on December 20, 2015. He is survived by his four children, Zibani, Yamikeni, Nzelu, and Gift. Accounts of where he was born vary. Dr. Chalwe states that Bishop Banda was born in Mufulira while the official Maranatha website states that he was born in Kitwe. Both accounts agree that he was born on July 29, 1956. He was born in a family of nine children. He then completed primary school education at Tangata and Mutamba in Muflira. Bishop Banda went to Mufulira Secondary School where he completed his secondary school education. As was the practice of many brilliant men and women in his youth, Sky Banda enrolled in a vocational training program at a technical institute operated by the Zambia Consolidated Copper Mines (ZCCM). This was the same vocational program attended by the likes of George Mbulo, Nevers Mumba and Green Phiri – some of the early Pentecostal figures in Zambia.

An avid lover of rock music in his youth, Sky Banda got converted to the Pentecostal faith in 1977. His ministry and leadership maturity came in earnest. He emerged as one of the most important converts to Pentecostalism. In Mufulira, he became a member of Eastlea Pentecostal Church. Dr. Chalwe states that Bishop Banda was one of the first graduates of Trans-Africa Theological College after it was reopened in 1978. Never to lose out on an opportunity to further his studies, Sky Zibani Banda then went to the West Indies for more theological and ministerial training. According to Vice-President Nevers Mumba, Bishop Sky Banda got recalled from the West Indies to become the lead pastor of Maranatha PAOG Church in 1981. At that time, the Pentecostal Assemblies of God Zambia (PAOG) had created an ambitious program to indigenize its leadership. Canadian missionaries from the Pentecostal Assemblies of Canada (PAOC) had accepted to begin transferring leadership to the locals.

Vice-President Nevers Mumba who is about four years Bishop Banda’s junior, remembers Banda as a great mentor to many. Banda was Mumba’s pastor before he launched himself into ministry as a young evangelist in 1982. Dr. Mumba acknowledges the mentorship he obtained from Bishop Banda in those formative years.

Sky Banda served as pastor at Maranatha from 1981 until his death this week. This longevity of service at Maranatha shows great dedication of a man who gave himself to the service of the church. Dr. Chalwe asserts that Bishop Banda had many “young ministers look to him as a symbol of stability.” Interestingly, despite many offers for him to immigrate abroad, Bishop Banda stayed home and labored faithfully in Kitwe, growing his church to thousands.

Bishop Sky Banda is reputed to have built Maranatha into a spiritual powerhouse for thousands. He also served as the leader of the PAOG Zambia for many years. Tributes have been pouring in for Zambia’s pastor. “I still feel numb”, a shocked Pastor Conrad Mbewe commented about the death of his friend. Sambo Mbale, an information technologist who had been working on some projects with Bishop Banda before his passing commented, “till we meet again”.

Bishop George Mbulo quoted Psalm 116:15-17, and said the following about the passing of his colleague:

“This is a great loss to the body of Christ as Bishop Sky Banda was one of a kind. Fervent in the Lord, on fire for Jesus and ready to proclaim the word of the Lord to the ends of the earth.”

The Rev. Dr. Japhet Ndhlovu who serves as a missionary in the United Church of Canada, explained his loss as follows:

“My body is here in Canada and my spirit fully with my fellow Zambians on this day as we celebrate the life of Bishop Sky Banda. MHSRP. Therefore, the redeemed of the Lord shall return and come with singing unto Zion and everlasting joy shall be upon their heads They shall obtain gladness and joy and sorrow and mourning shall flee away”.

Dr. Ndhlovu’s message sums up the feeling of many Zambians in the diaspora during this very difficult time. Musonda Mwale had this to say about this loss, “special thanks to Bishop Sky Banda who blessed our marriage.” This is a simple and yet powerful tribute emphasizing the simple elements of Bishop Banda’s pastoral heart and service. He was an extraordinary generous man who served the ordinary of our people. May our Lord Jesus receive his servant Sky Zibani Banda into his heavenly kingdom. Maranatha!

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Bishop Sky Banda – (picture courtesy of Maranatha Church)

 

Citation: Munshya E. (2016). The Sky was Never His Limit: The life and times of Bishop Banda of Kitwe. Elias Munshya Blog (www.eliasmunshya.org)

2015 in review

The WordPress.com stats helper monkeys prepared a 2015 annual report for this blog.

Here’s an excerpt:

The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 94,000 times in 2015. If it were an exhibit at the Louvre Museum, it would take about 4 days for that many people to see it.

Click here to see the complete report.

“Boasting na njala”: Why ZIALE results don’t make sense

E. Munshya, LLM, MBA, M.Div.

Fifty-one years after independence, we are a nation of “njala” and legal “load shedding”. In this context, it is not physical hunger I am talking about, but legal hunger. In a population of 15 million people, a paltry 1,500 are members of the Zambian bar. This is a crisis. It cannot continue any more. We need drastic measures to change this. Provinces such as Luapula, Western, Northern and Muchinga do not have a single private lawyer practicing there. My relatives in Milenge who get charged with possessing a ball of cannabis, will have no access to sound legal advice because the closest lawyer is in Ndola. This makes legal representation impossible and out of reach for a majority of our people. This state of affairs is a disaster!

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Elias Munshya, LLM, M.A., MBA, M.Div.

The Zambia Institute of Advanced Legal Education (ZIALE) is the statutory body established to provide the critical training needed to practice law in Zambia. It is a monopoly. It has a nine-month training program. The latest results are consistent with what we have seen over the years, a 5% pass rate, or in other words a 95% failure rate. Out of every 100 students, only 5 get to clear the ZIALE program to become lawyers. There has been a lot of discussion about what should be done to improve this pass rate. Clearly, passing 5 or 15 lawyers each intake will not cure the lawyer deficit that Zambia faces. Zambia needs to be adding at least 100 new lawyers a year if we are to have a professional legal service that would serve the legal needs of all Zambians. At this rate, we will never catch up, not even in a 1000 years.

The Law Association of Zambia (LAZ) president, issued a statement last week, stating that he finds nothing unusual with ZIALE results. He went on to say that students fail because ZIALE is tough. But the question is, to what end should ZIALE be tough? Mr. Chisanga said that ZIALE has a very compressed curriculum, and as a result students find it very difficult to master. He gave an example, “most of the students are used to taking 4 subjects in a year, so they find it difficult to master 9 subjects at once.” I have a question, are these 9 subjects, taken over a period of 9 months, necessary to the practice of law? What exactly do these subjects teach? If you have a program of study that is so tough as to fail a good number of people you need to practice law, it is necessary to change your program. Perhaps, ZIALE should stop to blame the students, it must accept responsibility for once and admit that its methods and its curriculum are archaic, and its basis is unsustainable. ZIALE is not helping advance the legal profession in Zambia, it is helping stifle the development of law in Zambia.

A bar admission course in Zambia must teach basic skills that impart practical abilities that would help law graduates meet entry level requirements to practice law. A bar admission course needs to teach things such as advocacy, drafting of pleadings, professional ethics, and procedural matters. It is absolutely unnecessary to teach substantive law to students because they are supposed to have studied substantive law at law school.

It is true that a bar admission course acts as a gate keeper in some situations where you have too many professionals and you want to deliberately control how many people get called. In Zambia, we have a serious deficit of lawyers, having ZIALE become a gate keeper makes no sense. As I have stated, it is tantamount to “boasting na njala” to insist that we should limit the admission of new lawyers when our country faces a serious hunger for lawyers. In Japan, the pass rate for the bar admission course is around 5%. However, Japan has a good number of lawyers and they can afford to limit how many new lawyers they admit. We are not Japan. The number of lawyers in Zambia can not compare to the Japanese situation. We need to use systems that are relevant to Zambia. We should not do things simply because other rich nations do that.

I do understand that some professors at ZIALE have said that law schools are graduating very low calibre of students. I agree. My interaction with some law students, yields a very sad picture. But that still does not explain the 95% failure rate at ZIALE. Student calibre could be justifiable if the failure rate were 50%, not when it is 95%. Out of curiosity though, why is it that the politically connected and the relatives of judges and senior lawyers almost always pass at ZIALE? Are they of a better calibre?

This is the problem when you make a training program unnecessarily difficult, you open the door to corruption, bribery and nepotism. When few can pass ZIALE fairly, the best category that would pass it are the extremely intelligent people, the geniuses. Since we have a very small supply of geniuses in the world, the next category of people to pass are the politically connected and friends and children of those who teach at ZIALE!

In the next intake at ZIALE another naïve group of students will enrol and pay millions in fees. It is like we are a nation addicted to gambling. Even when you know that ZIALE is a casino, we still have 200 to 250 new students who will end up paying millions to be part of the 95% failure rate. Zambian law graduates should one year boycott ZIALE. Without the billions of kwacha, they get from students, ZIALE might just change.

The Zambian government has the duty to ensure that the people of Milenge and Mwinilunga are provided adequate legal advice. It is their right. If ZIALE resists change, government can simply go to parliament, strip ZIALE of their monopoly and ask the people of Milenge to directly train their own lawyers. Both ZIALE and LAZ are just concerned about perpetrating their monopoly and “boasting na njala”. They do not care about the accused of Milenge. And that’s a serious legal hunger our nation faces.

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Suggested citation: Munshya, Elias (2015). “Boasting na njala”: Why ZIALE results don’t make sense. Elias Munshya Blog (www.eliasmunshya.org)(November 19, 2015).