Category Archives: Zambian Political Theology

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

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

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

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

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

President Michael Sata of Zambia

President Michael Sata of Zambia

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

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

Raiding churches is an assault on liberty - Munshya wa Munshya

Raiding churches is an assault on liberty – Munshya wa Munshya

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

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

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

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

Should Zambian MPs get a salary increase?

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

Some Members of Parliament (MPs) are demanding for a pay increase. And our people are quite justified in their outrage. This is even sincerer since there is an assumption among our people that MPs are well compensated already. It is controversial to justify a salary hike for MPs at this time when there is apparently a wage freeze for all public workers. At least, that is the position of the Zambia Congress for Trade Unions (ZCTU). The economic difficulties brought by the no-clue government of Michael Sata affects all Zambians equally. That being the case, it is problematic to insist that MPs salaries should be increased without recourse to all other workers countrywide. There is wisdom in the idea that if MPs want their salaries increased, they should equally fight for all other public workers.

Hon. Catherine Namugala (MMD, Mafinga) believes that the current salary levels for MPs are too inadequate. Zambia’s popular online publication, the Zambian Watchdog, has issued an opinion supporting the salary increase. On the other hand, leader of Zambia’s biggest political party, the MMD, has expressed reservations about this salary increase. While the cost of living has gone up, Dr. Nevers Mumba nevertheless believes that this particular salary demand has come at the wrong time. There are many who agree with him.

There is obviously a legitimate philosophical discussion to be had about salaries, wages and related matters. How much is enough? We could debate for millennia on this. I wish to ague, though, that MPs should be compensated at the same level as cabinet ministers. Harmonising MPs salaries with that of ministers will help remove the incentive that seems to attract MPs towards the carrots dangled from the Executive. In our system of government, it is easy for an executive President to swing candies of ministerial privilege on unsuspecting MPs so as to lure them to her side. If this incentive is removed we would be closer to assuring a truly vibrant parliament. Consequently, harmonisation will create some level of egalitarianism within the august house. It seems, quite unsurprisingly, that some MPs demand for higher salaries because they see that their colleagues in government do seem to have better privileges than they do. As such, viewed from an economic comparative perspective, the floor of the house becomes not just about the political affiliation; it often turns out to be a divided trajectory between the privileged executive members and the ordinary backbenchers that are paid less. There is some sense in addressing this in the interest of democracy.

Hon. Catherine Namugala is asking for money in her pockets

Hon. Catherine Namugala (MMD) is asking for more money in her pockets

A harmonised salary structure is good for our democracy due to its attractional character as well. The quality of our parliament is dependent upon the quality of the MPs it can attract. If we want to attract more vibrant citizens, we should be able to pay a just wage for those we wish to attract. There is some argument by some of our people that only those financially successful in life should be able to aspire for parliament. This thinking is abhorrent to democratic principles. Parliament should not only be a place for the filthy rich. It should be a place for the ordinary citizen. Restricting leadership only to the rich has the consequence of confiscating governance from the ambits of ordinary citizens into the hands of the privileged few. In order for parliament to be a place for vibrant young professionals, it should be able to compete in the marketplace for that talent. While it is true that there is some level of personal sacrifice that goes into aspiring for parliamentary leadership, we should not make it more difficult for younger women and men to want to aspire for parliament due to an archaic and unworkable salary structure.

Harmonising salaries in parliament means that the current MPs will consequently get slightly higher salaries than they do now. But that will only be a smaller concern in a bigger picture: the picture of raising the profile of an MP to that of cabinet minister, at least in the salary and wages sense. Consequently, instead of thinking of such a salary hike as being a burden, we should look at good pay for MPs as the needed investment in our democracy. We cannot afford to have MPs’ independence sacrificed by sectarian interests falling from the dangled carrots of the executive. Most of the opposition MPs who crossed to the executive branch could not have done so, had they not had the financial incentive to do so. To reform parliament, we must be willing to think outside of the box. Salary harmonisation is such thinking.

Salaries for Zambian MPs need to be harmonized with that of Ministers - Munshya

Salaries for Zambian MPs need to be harmonized with that of cabinet ministers – Munshya

Harmonising MPs pay with that of ministers is good for its impact on the hospitality expected from MPs. In a nation like ours, MPs are not only political representatives; they are also expected to provide financially for some of their constituents. This is perhaps one of the most controversial aspects of the role performed by MPs. And when MPs try to explain this reality, we should listen to them and dialogue instead of dismissing it.

Traditionally, tribal leaders such as chiefs and village heads, provided hospitality from the resources gathered from their subjects. So the quality of hospitality was dependent upon the goodwill and generosity of the public. In our modern society, however, the reverse seems to have happened with regard to political leaders such as MPs. Some members of the public expect the MPs to leave some financial help each time they visit their constituencies. This help can range from basic assistance of the vulnerable to helping out at funerals. And many are the funerals among our people. We are a suffering nation and we must all sympathise with each other. Members of Parliament who are not responsive to these needs are usually labelled as selfish, even if they have no personal resources to help. Most of these MPs do not simply have sufficient resources from which to assist all the needs in their constituencies. Until our society changes the narrative of the roles MPs should play in the constituencies, we have a duty as a people to listen to MPs like Namugala who try to explain how difficult it is for MPs to be able to provide for so many of our people. I believe most MPs want to help from their own personal funds, but can’t afford to do so. While there is no way that our government can make all MPs afford to help as much as they would like to, we should sympathise with those MPs who try to explain their plight. Harmonisation, in my opinion, while not being the magic bullet to resolve this financial problem, would go along way in helping our democracy.

While I am not too sure about how much is really enough for an MP’s pay, I am very sure that harmonising their salaries with that of cabinet ministers will be a good idea for our democracy.

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Suggested citation: Munshya, E., ‘Should Zambian MPs get a salary increase? Elias Munshya Blog (July 28, 2014) (available at http://www.eliasmunshya.org)

 

 

 

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

Munshya, LLB (Hons), M.Div.

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

There is hope for Lusaka

There is hope for Lusaka

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

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

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

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

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

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

Hope for Lusaka, hope for Zambia

Hope for Lusaka, hope for Zambia – Munshya

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

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

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

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

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

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

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

The walk on picture

The walk on picture

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

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

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

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

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

President Sata-Cabinet 1

President Sata and his cabinet

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

Munshya wa Munshya

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

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

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

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

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

 

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

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

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

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

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

Brebner Changala

Brebner Changala

 

 

Mumba Malila: A Supreme Court Justice for our time

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

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

Supreme Court of Zambia

Supreme Court of Zambia

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

Justice Mumba Malila SC

Justice Mumba Malila SC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mulenga Sata

Mulenga Sata satisfies Article 34(3)(b)

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

President Sata with son Mulenga

President Sata with son Mulenga

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

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

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

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

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

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

Munshya wa Munshya

Munshya wa Munshya

On Trinity Western University’s Law School

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

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

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

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

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

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

Let me know what you think.

One Zambia, Many Vultures: Towards a More Humane Politics During Presidential Illness

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

The question is not really about whether President Sata is sick or not. The question is about how the nation and its political players should conduct themselves in moments of alleged presidential illness. When a president falls ill, or rather when allegations of presidential illness become apparent, we as a people have some choices. Some of these choices are terribly hideous. The first choice is to use the illness of the president as an opportunity for political posturing or partisan cannibalism. The second choice is to deny and deny. And then deny some more. There is a better choice, however. A choice far better than these two choices: a more humane way of doing politics. The rivers of national sanity and morality have never dried up as to deny us the opportunity to be civil when reacting to the misfortunes of our fellow humans. There is a healthier manner of how we should handle difficult issues adjoining a presidential temporal incapacitation through illness.

Levy Patrick Mwanawasa

Levy Patrick Mwanawasa

Political posturing is never in the best interest of the nation. In fact, political posturing during rumoured presidential illnesses, has in the past, led to bitterness, angering hatred and obscene disappointment. For example, during the many illnesses of Levy Patrick Mwanawasa (president from 2002 to 2008), a very verbose leader of the opposition at that time wasted no seconds in using Mwanawasa’s alleged illnesses as a ticket to scorn Levy’s government and leadership. That same opposition leader mustered enough vigour to claim, quite undiplomatically, that when Mwanawasa was examined by doctors in India, “they found that there was no coordination between his brain and his mouth.” These were very harsh and discourteous words to come out of the mouth of an important leader of Zambia’s opposition at that time. What such sentiments went to prove was the unfortunate fact that taking such stances when a president is ill demolishes the good human spirit that should be resident in all of us during the misfortunes of others. Now that there are plausible rumours of the current president being ill, it is incumbent upon us not to treat President Sata, the way a sick Mwanawasa was treated. As the saying goes, “two wrongs never make a right.” We can never triumph over evil using evil.

The best we all could offer during this very difficult time are the finest wishes, extravagant prayers and resilient hope for the full recuperation of President Sata so that he could find the strength he needs and the fortitude he requires to fix the many problems that our country is facing. Zambia currently has a currency that is dropping in value like a ball stumbling from Lebron James’ huge hands. The Kwacha has hit K7 000 (in real money) to the US dollar. Students at the Copperbelt University (CBU) have downed their brains until their meal allowances are increased by at least 45%. They are asking for Ba John Phiri to address them. Roads that were built linking Ndola to Kitwe have developed severe potholes days after the contractors handed over the keys to Hon. Yamfwa Mukanga. Rupiah Banda’s flagship project stadium originally named “disaster stadium” by Ba Chishimba Kambwili is falling apart even before it is officially commissioned. It is still not known when this official commissioning will take place considering that both Kambwili and his boss missed the Sunday expected launch day. Old and finished ZAF aircraft are now murdering our soldiers like roaches. Defence Minister Edgar Lungu spends more time mourning soldiers killed during peace than during war. Our national debt, being managed by Bo Alexander Chikwanda, is rapidly dashing towards pre-HIPC points. PF contracted Kaloba currently stands at $4.5 Billion. Honestly, it will require the steady fortitude of a very fit president to preside over the recovery of this country. That being the case, we all do very well to hope and pray that His Excellency recovers quickly, for great is his work and enormous are his challenges. Some of these economic challenges he created them himself. Fya kuiletelela fye.

Munshya wa Munshya

Munshya wa Munshya

The other choice of handling the alleged illness of a president does not inspire confidence at all. Even when it is so notoriously obvious that vintu sivili bwino, it is sad that the PF government’s default response to citizens’ concerns over the health of the president is that of don’t kubeba. This is sad. But knowing the vulturistic nature of our politics, PF government is denying it because somehow they feel like the political vultures are already circling. That should not be the case. During this time, the government should genuinely share, with the citizens, the state of the health of the president. And from there, ask the nation to pray and hope for a quick recovery. Stating that the president has malaria or pneumonia should not be taboo for any government. It should not be a taboo topic, definitely, not in our times. In fact, even if the illness were very serious, it would still be in order for a government to inform the nation so that goodwill and prayers are offered in return. Our country has excellent doctors in all hospitals to help when called upon. Great Zambian hospitals such as UTH, Chainama, Ndola Central and Levy Mwanawasa can always send their best physicians to help. Denials are hardly the best policy. Denials become even more ridiculous when evidence, as seen on TV, pictures and face-to-face, shows a complete different story. There is a saying, that “she who hides her illness risks embarrassment in death”. A government should be proactive in communicating such hardships instead of being mischievously secretive.

We should pray for Michael Sata

We should pray for Michael Sata

Zambia is a democracy. We cannot really completely eradicate the politics of opportunism during a trying moment like this one. Already, vultures in the ruling party are positioning themselves for a depraved feast at the slab of misfortune. A wake of vultures is ready. We have heard them in Mpulungu. They are loud and clear in Mufulira. The vultures have started to gather in committees. The wind is growing dark, and the energy is beginning to plunge. There at, perhaps, the allegations of the last breath, the queenmakers are rearranging their ugly seats casting lots and perhaps spreading bones. While we should not be surprised at this behaviour, we should nevertheless hope and pray that they do so in a humane form. There is still a way to transform vultures into doves. There is a way to redeem our politics from that of depravity to that of humanity.

The government of Zambia should be forthcoming with information. This is the best way to lead and to keep vultures at bay. The people of Zambia should also be clear about showing their true humanity. This is the best way to be citizens. The constitution of Zambia should be respected and Cabinet should only act when there is clear evidence of incapacity. But for now, all of us should keep praying and hoping that our problems and the many challenges we face are taken care of in the most humane way. Pafwa abantu, pashala bantu.

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You are welcome to use this material for academic purposes. Here is the suggested citation. Suggested citation:

Munshya, E., ‘One Zambia, Many Vultures: Towards a more humane politics during presidential illness’ Elias Munshya Blog (30th May 2014) (available at http://www.eliasmunshya.org)

 

 

Kenya’s New Marriage Law: A Call to Critical Reflection

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

In a culture driven by headlines, our people mostly never take the time to read the fine print. Ours is a society, which ignores the body of any information in preference for what the headlines are screaming. Just a few weeks ago, the headlines squealed and most of our people believed that Kenya had established new polygamy laws. With that misleading information came the outraged. Although few had taken to read the actual law that the headlines were talking about, they rushed to condemn the new law that Kenya had enacted. Western media sources claimed that the Kenyan president “had signed a law, which will now allow Kenyan men to marry more than one wife.” This was the gist of the news. And this essence was clearly misleading. The headline flew very fast and many Africans, including some Zambians jumped on the bandwagon to condemn this law. This information was very disingenuous to say the least. Headlines claiming this are filled with half –truths. To be fair to a good conversation that Africans must have, we must relook at what the law actually says and why most African societies including Zambia need to reform and repackage its marriage laws.

Munshya wa Munshya

Munshya wa Munshya

Just like any other law, this legislation is not perfect. There are some provisions that need refining. For example, it creates too many categories of marriages. It has quite a number of marriages; some are contracted under Islam, some under Christianity, others under customary law. It then has what it calls civil marriages. The law could need a little simplicity than this complex make up of these marriage categories. The new law also does seem to suggest that a witness of a civil marriage should not be “intoxicated”. It is quite surprising why it would contain such a provision. It does not define what is meant by intoxication. Nevertheless, it is trite law that a contract created while intoxicated still remains a valid contract. I wonder why it specifically prohibits intoxicated people from being witnesses to a marriage. The law also does run into definitional problems by trying to define what is meant by the Hindu religion. The definition goes to define Hinduism as “including Buddhism”. The Kenyan parliament is not a novice parliament to make such a definitional blunder. The law also forbids marriage between cousins. This proscription however, does not apply to marriages contracted under Islam. This ban would be controversial in Zambia, considering that some Zambian tribes do recognize customary marriages among distant cousins.

In spite of the obvious weaknesses in this piece of legislation, it is in my opinion a progressive legislation. First, it is quite significant in the way it raises minimum marriage age for ladies from the previously undefined age to the age of eighteen. Under this new law, a woman cannot be married unless she is eighteen. By far, this provision removes the ambiguity that came with some African customary practices, which had no clear minimum age for marriage. With this new provision it means no one using either tradition or religion can go marrying off young girls.

Second, this law attempts to consolidate into one piece of legislation several scattered provisions that dealt with marriage. The law repealed about ten other Acts dealing with marriage. It certainly has not simplified marriages and their statutory provisions, but it is good that now Kenyans will have to go to one piece of legislation and find the critical information they need about this important institution. Consolidation is good for laws. This is even truer for most the patchwork laws we inherited from England and Wales.

Third, this law has brought under statutory cover, the customary practice of polygamy. This is the part that got newsmen and newswomen around the world most interested. This law did not create anything new with regard to the practice of polygamy; all it did was grant statutory recognition to customary marriages that already have the presumption of polygamy. The law did not in any way impose the presumption of polygamy on Christian marriages at all. To put it simply, there is a presumption of polygamy on all marriages contracted customarily, but this is not the case with civil or Christian marriages as defined by this Act. Bringing statutory recognition to the customary practice of polygamy has several advantages. It certainly, could help partners in such polygamous relationships to have more access to property rights than is the case under customary practice. Additionally, bringing customary marriages under statute removes the second-class stigma assigned to such marriages. In Zambia, most marriages are contracted under customary practices. It is ridiculous that so many years after independence, we should still stigmatize and delegitimize customary marriages which most of our people contract.

This then brings us to the issue of polygamy specifically. Does this law now make Kenya more polygamous than was the case before the law? Obviously, the answer is no. As I have stated above, this law only grants statutory recognition to those marriages that until now had not had that recognition. Kenyan men will not suddenly go and get wife number two, three or four. If they did, it certainly is not because of this law!

wedding_rituals_kenya

There is need for critical reflection

We might need to look at the implications of this law on what is commonly referred to as “Christian marriages”. In Zambia, we do not have the stark distinction that Kenya does seem to have drawn between the “civil marriage” and the “Christian marriage”. Nevertheless, in Zambian marriages contracted in the church while still retaining the “Christian” fervour are “civil marriages”. To characterize these civil marriages as Christian while not extending the same to some customary marriage is a serious misnomer. This is perhaps where Zambian law needs reform. The only thing that should define a Christian marriage should be the faith of the people involved in the marriage and not the way it was contracted. It is ridiculous to only regard those marriages conducted under the “statutory” law to be “Christian” marriages while ignoring millions of other marriages involving Christians who nevertheless married under customary law. A customary marriage could still be a Christian marriage, and we might need statutory changes to accommodate this.

I have tried to be careful here not to delve into the debate of the moral undesirability of polygamy. I am also not going to delve into what should be the Christian view of polygamy. It is beyond this article. However, I have tried to challenge the misconceptions concerning this new Kenyan law. The law is not a polygamy law, but a marriage reform law. Looked at it from that perspective, we should all find reasons to move beyond condemnation to critical reflection.