Tag Archives: Michael Sata

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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Seleni Tusheteko: Zambia Railways & Why Parastatals Have Failed Zambia

Posted on April 15, 2013 | Leave a comment

I have not given up on Zambian Railways and neither have I given up on the Zambian people. I have not given up on the resolute will of our people to better our country and restore our future.I believe in Zambia and I believe in its destiny. But at the same time, I believe that we must change our systems if we are to effect true change to ZRL, ZESCO, or even NCZ. The current parastatal system in Zambia does not help these companies instead these companies become conduits for political opportunism and nepotism.

Parastatals have never made a profit since 1964. Parastatals have been run not on a business model but on a political model. Parastatals have not had professionals running the boards but they have been staffed with relatives, nephews, nieces and great-grandsons of the politicians. Regardless of how brilliant a manager is, once the politics enter the boardroom, there is no way ZRL would have enough goodwill left to even build a single engine.

Chirwa is done. And so is Michael Sata come 2016. However, there is hope for parastatals I must confess, the hope that Munkombwe talked about, the hope for the next mouth to go into the parastatal boards to steal. There is hope for Munkombwe and the corrupt known to steal a little bit more from the poor. Zambia can do better, but parastatals under the current model will only go to ensure that after Chirwa returns to Britain we will have another brilliant man waste his talents on mud unless he provides a few millions to the board members. These board members have worked hard, and yes they have. They campaigned for Sata in 2011 and it is their time to eat.

Seleni tusheteko.

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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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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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The Temptation of Nevers Sekwila Mumba (Part III): Keeping the Ambition Alive

Posted on March 11, 2013 | 7 Comments

Nevers Mumba

By Elias Munshya wa Munshya

Dr. Nevers Sekwila Mumba believes that political parties are not the centre of the political process, people are. As such, he sees nothing wrong with changing parties, starting new ones, disbanding others and going back to the parties that disowned him. Political parties for Nevers are tools that a person can use to aspire for leadership. As such, loyalty to a political party comes second on Nevers Sekwila Mumba’s radar. The adage that there are no permanent enemies in politics except for permanent interests, comes even truer in the political life of Nevers Mumba after he was fired as Vice-President of Zambia.

In the previous article, I had mentioned how that after President Mwanawasa’s return from New York in September 2004, it took only 24 hours for Vice-President Nevers Mumba to be fired. The firing itself came as a shock to Nevers Mumba. What is even worse is that President Mwanawasa felt so aggrieved at Nevers that he even paraded Nevers’ letter of apology that he had written in connection with the reports The Post had carried about the airport event the day earlier. Most interestingly, President Mwanawasa even mentioned that he had regretted appointing Nevers as Vice-President.

After he was fired, a brood of the Mwanawasa camp within government and party was excited that Nevers had been fired. The perceived threat that Nevers presented to all those that were aspiring to succeed Mwanawasa had now been taken of. In the opinion of some, the MMD would now move on and keep the Nevers Mumba factor behind them. Not so fast though, the Nevers Mumba factor was alive and well and in the next few months he was to strike back and strike back real hard.

After the September firing, Nevers left government house, his official residence within days. Typically, a former vice-president is expected to stay in the official residence for a few weeks to allow for him to look for decent accommodation elsewhere. He left the country for the USA and a few other countries to perhaps recuperate. After this firing, he mentioned of how he tried the sport of golf and also found solace in taking a few courses at Regent University in Virginia. He had earlier enrolled there in a Master of Public Policy program.

Upon return to Zambia, a few months latter, Nevers discovered that the support he had garnered within the MMD branches across the country was quite unshaken. In fact, even within the MMD NEC itself, it seemed Nevers had some sizeable support. In a party that had grown to dislike Mwanawasa’s hardline style of leadership, most within the MMD party had taken Mumba to be a safe alternative.

The MMD was about to go to the convention that year. Now that it was just November, the arrangements for the convention were delayed until the next year 2005. MMD members who had seen Nevers as an alternative to Mwanawasa had to move quickly to assure Nevers of their support. Even MMD stalwarts like Sikota Wina and his wife were reported to be among those supporting Nevers Mumba to take over as MMD president.

As Nevers’ presidential candidature was gaining momentum, he enlisted the support of President Frederick Chiluba. Nevers knew that openly accepting Chiluba’s endorsement would be a political gaffe. And so he had to be very careful. Chiluba on his part had made it clear that he would support anyone who wishes to challenge Mwanawasa. When asked about this endorsement, Nevers Mumba’s answer was clever and yet subtle:

“I have heard that President Chiluba has endorsed me for MMD president, there is very little I can do about that since I cannot go into his mind and change it.”

Implicitly then, Nevers had accepted Chiluba’s endorsement. And if Nevers had considered Chiluba to be a thief – now that he was running for president of the MMD he could do with as much support as he could get. It did not matter that when in government Nevers did push for Chiluba’s prosecution. An enemy had become a friend – politics par excellence.

And then came the announcement. Nevers was featured on Anthony Mukwita’s Let the People Talk. It is from there that he announced that he was going to run for MMD president and challenge President Levy Mwanawasa at the upcoming MMD convention. Mwanawasa on the other hand gathered enough intelligence both within the party and indeed the nation to know that Nevers was going to be a viable candidate against him. He was told there is a revolt in the MMD branches and Nevers had real support.

With these reports, Mwanawasa had to move very fast. The only way out was to change the MMD’s electoral college. To help Mwanawasa do this was going to be the newly installed MMD Secretary Vernon Mwaanga. It only took weeks for Vernon to announce that the NEC had changed the electoral college of the upcoming MMD convention. It is the NEC that was going to choose delegates to the convention and not district or branch organs. The provincial MMD branches were also stripped of this power. Additionally, Vernon announced that the MMD was going to commence disciplinary action against Nevers Mumba. Among the charges Nevers was facing are gross indiscipline and disloyalty to the party.

The dissatisfaction that the MMD members and branches had against Mwanawasa was so deep rooted that even after changing the Electoral College, most of Mwanawasa’s preferred candidates did not win at the convention in 2005. Most notably, Vernon Mwaanga lost the position of National Secretary from an electoral college, which he himself had handpicked. But we will come back to that later.

After weeks of wrangling, the NEC finally decided. Nevers had been expelled effectively ending his ambition to be president of the MMD. Vernon Mwaanga had also ensured that the electoral college was cleansed of all the supporters of Nevers Mumba. One by one, so called MMD branch officials would appear on national television renouncing Nevers and emphasizing in no flattering language that the disgraced former priest would not come near to tasting the republican presidency.

Politics change and change very quickly. It is one thing to have support within the MMD and quite another to transform that support into a new political party. Even if Nevers was quite outstanding when compared to Mwanawasa he was no Michael Sata. Starting a new political party was going to perhaps be the most controversial decisions of Nevers’ political career.

Enlisting the services of a shadowy figure known as John Ziba, Nevers Mumba established and registered a new political party to be known as the Reform Party. With an emblem of a charging bull, the party symbol was going to show everything that Nevers stood for – tenacity, strength and power. The Reform Party had for its slogan, a phrase taken from the national anthem – strong and free. This party was not going to last long. Nevers did not manage to garner any significant support for it, and before long, the Reform Party remained a party on paper.

Perhaps, Nevers’ decision to start his own party after his expulsion from the MMD might have been motivated by the desire to emulate Michael Sata’s decision to start his Patriotic Front years earlier. However, like I mentioned above – Nevers was no Michael Sata. What Sata represented in the minds of Zambians was far much more real than what Nevers did. And so if Nevers had thought that his new party was going to succeed he was in for a rude shock. The Reform Party made no real inroads into the political scene.

After Nevers was expelled, the Bemba-speaking section within the MMD had lost their political symbol and with it they had lost their influence. This group now wanted to get back its lost power. Mwanawasa knew of this influence and in fact it had been one reason why he had earlier appointed Nevers in the first place – to appease them. For Mwanawasa to keep the Bembas happy within the MMD he appointed another Bemba from Kasama – Lupando Mwape to be Nevers’ replacement. But the Bemba group was still was unsatisfied. Lupando Mwape was not a safe bet.

Meanwhile, as the MMD is recovering from Nevers’ expulsion, a group of six Bemba candidates were lining up and campaigning for the position of party vice-president. Austin Chewe, Lupando Mwape, and Bwalya Chiti were among the leading contenders. Knowing the consequence of such a bloodbath, Mwanawasa came up with a solution, suspend all campaigns for the party vice-presidency but keep Mwape as republican vice-president. But that decision was going to be a costly one for the party.

At the convention, the Bemba group resurfaced again. The same group that was unsatisfied with the expulsion of Nevers Mumba regrouped and the influence was deafening. They influenced the MMD convention to vote for Bemba-speaking Katele Kalumba as MMD National Secretary. This shocked Mwanawasa. But at least it made him realize that in politics friends could be enemies and enemies could turn out to be friends. Katele Kalumba is one of those individuals being prosecuted for corruption and theft by the Mwanawasa government.

This MMD convention and the way it voted in Katele Kalumba made Nevers Mumba to exclaim that Mwanawasa had betrayed the fight against corruption.

To bolster his chances in politics, Nevers knew that the Reform Party was headed nowhere. As such, he sought an opposition alliance with Michael Sata’s Patriotic Front for the 2006 elections. The terms were that Nevers was going to support Sata while he is given the opportunity to stand on PF ticket for parliament. A few weeks before the 2006 elections Nevers Mumba travelled to Chinsali with a certificate of adoption from PF Secretary General Guy Scott.

There was a small problem, however. PF Secretary General Guy Scott had issued a similar certificate of adoption to another candidate Mulenga. Mulenga coincidentally is nephew to Nevers Mumba. He had campaigned hard in Chinsali and had bolstered his popularity in Chinsali. In the battle of the 2 adoption certificates, it was Mulenga’s that won. A family meeting in Chinsali had persuaded the uncle to defer to the nephew and drop out of the race for Chinsali.

Nevers had failed.

The 2006 elections came and Nevers never again appeared with Michael Sata. He never openly campaigned for him. His Reform Party was not prepared enough to even field a single candidate. It seemed like dejavu for Nevers.

In the 2006 election, Mwanawasa finally prevailed. But the MMD’s popularity was further eroded. After having lost popularity in urban areas, the MMD had now lost to the Patriotic Front in both Luapula and Northern Provinces. The Bemba-speaking areas of Zambia had disowned Mwanawasa and the MMD. In fact, even Mwanawasa’s vice-president Lupando Mwape lost to a little known lawyer in a contest for a seat in Kasama.

With the Reform Party now basically extinct Nevers started making gestures to Mwanawasa for an appointment into the diplomatic service. His efforts at going to Canada kept being rebuffed by Mwanawasa and his loyalists. There was no room for Nevers Mumba. His sin had been too much. And his temptations were unforgivable.

Two years after the 2006 elections, President Levy Mwanawasa died. Fresh elections were to be called within 90 days of the burial. The MMD found its candidate in the republic vice-president Rupiah Banda. Knowing that the MMD was basically non-existent in the Bemba-speaking regions of Luapula and Northern Provinces, candidate Rupiah Banda turned to both President Chiluba and to Nevers Mumba. The 2009 presidential by-election would pit Michael Sata against Rupiah Banda. Sata’s friend Frederick Chiluba was no longer supporting the PF. He had changed back to the MMD because Rupiah Banda was more hospitable to him than Mwanawasa had been.

In countless campaign stops, Nevers appeared with Rupiah Banda in Mansa, Chinsali and several others places. Campaigning for Rupiah Banda meant almost instantaneously that Nevers was still going to be game.

After Rupiah Banda won the elections – Nevers’ dream of going to Canada as High Commissioner would come true. The turbulent priest, turbulent vice-president and controversial politician was now on his way to Ottawa to become the country’s ambassador. Upon hitting the ground in Ottawa, Nevers became a hit. He learnt the art of diplomacy quickly and got loved almost instantaneously by his diplomatic colleagues. In 2010 he was appointed dean of the diplomatic corps of Canada. Apart from Canada he was also ambassador to several Caribbean nations such as Bermuda, Jamaica and The Bahamas.

Within the business community, Nevers connected very well. Barrick Gold had just come to Zambia and were making huge investments into Lumwana. President Banda was happy to have Nevers in Ottawa. Since Nevers’ ambition knew no boundaries, Rupiah Banda did well to keep Nevers as far as possible. But even from the far flung areas of Canada, there were still whispers in the corridors of power, that Nevers’ political ambition had not ended. His time in Ottawa was going to be but a preparation time for something bigger.

What else could be bigger than being Ambassador or being vice-president?

Nevers’ sights for State House were never altered. Being Ambassadors was just one of those steps to take to help him reach the goal. However, MMD members and indeed many MMD insiders were still watching Nevers from afar and given the right circumstances they could give him another chance.

And that chance came in 2012. It came very fast and shockingly brutal.

In the 2011 elections, Rupiah Banda had lost the election to Michael Sata. Ambassador Nevers Mumba in Ottawa got the shocking news and knew there will be changes soon in Ottawa. Hours after Sata was sworn in, Nevers sent his congratulations but knew that his time as Ambassador had come to an end. He started gathering his goods and putting his house in order. Zambia had called. Foreign Affairs Minister Chishimba Kabwili recalled Nevers Mumba with immediate effect. To this recall, Nevers responded:

“I will come back to Zambia after the 3 months expires in accordance with my contract.”

This three months would give Nevers the necessary time to bid farewell to the contacts he had gathered in Ottawa. It would also give him the time to reflect on his next move. The opinion within the MMD NEC had been quite categorical – they needed him back to head the MMD.

Rupiah Banda tried to hold on to the MMD presidency for a few more months. But in December 2011 – he resigned as MMD president giving chance to the MMD NEC to find a new president.

In a convention, the MMD electoral college comprising branch, district, provincial and national delegates cast their votes. The first ballot had no convincing winner. It was the second ballot that assured Nevers Mumba of victory.

That morning, Nevers Mumba had been elected president of the Movement for Multiparty Democracy.

President Michael Sata was not too happy with this outcome. From State House, President Sata castigated Nevers Mumba as a bogus and fake pastor who had stolen money in Canada and could not be trusted for leadership.

“Nevers Mumba”, President Sata said, “abandoned his flock to join politics.” These words left no doubt that Nevers Mumba was going to face more temptations and trials under the leadership of President Sata.

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The Temptation of Nevers Sekwila Mumba (Part I): Politics of Personal Sacrifice

Posted on March 5, 2013 | 12 Comments

Nevers Sekwila Mumba

By E. Munshya wa Munshya

It is Frank Talk time on prime time television in the early 1990s. One evening, the whole nation is listening in as journalist Frank Mutubila introduces his guest on ZNBC TV. Pastor Nevers Mumba sits confidently in his chair. Next to him is his wife. They are appearing on a program that follows and features news personalities. In the middle of the interview, smart Frank Mutubila probes Nevers about whether he would consider running for public office.

“I am a preacher”, Nevers exclaims. And continues, “any involvement in politics would be a demotion.” Those words would become the most memorable lines of that Frank Talk interview.

When Nevers is saying that politics would be demotion. It really means just that. His name had become a household name in Zambia. He was an international preacher attracting the very best of international charismatic preachers. In a Christian nation, Nevers had access to State House at any time. Among his closest friends were President Frederick Chiluba and his Vice-President Godfrey Miyanda. Nevers Mumba was for all reasons a man with a lot of influence, the influence that came as a result of his faith commitment and leadership within the charismatic Pentecostal movement. His yearly Victory conferences became pilgrimages for Zambian Pentecostals.

Nevers’ influence did not just involve the MMD regime, however. President Kenneth Kaunda counted among many admirers of Nevers. In the dwindling days of his presidency, Kenneth Kaunda, a Chinsali native had turned to Nevers, another Chinsali native for counsel. The meeting at State House that Nevers had with Kaunda occupied several pages in Nevers’ book Integrity With Fire. According to Nevers and using Pentecostal language – President Kenneth Kaunda had given his life to the Lord after meeting Nevers at State House around 1990.

After winning the 1991 elections, President Frederick Chiluba’s government policy was to recognise and respect church leaders. Ignored for a long time under the leadership of Kaunda, Chiluba was going to give more visibility to Pentecostal leaders. He lavished them with recognition and Nevers Mumba was among those Chiluba honored with Zambian diplomatic passports. The reason for this honor was simple: “Christian preachers were envoys of the Christian nation of Zambia.”

On television, The Zambia Shall be Saved program was featured weekly, and sometimes appeared twice a week. In that program, Pastor Nevers Mumba became a firebrand of what it meant for Zambia to be a Christian nation. He would preach about faith, about prosperity, about international exposure. He would also preach about black consciousness. In those programs Nevers would testify about his wealth, his vision and the plans for his church and consequently for Zambia. Things were going well it seems. Zambia was going to be saved, and indeed it was getting saved.

Nevers was an alumnus of Hillcrest Technical School in Livingstone. After completing high school he interned for a few months in the Zambia Consolidated Copper Mines. But this was not going to last long. He was to meet Evangelist Reinhard Bonkke in the early 1980s. When Bonkke met Nevers it was like at first sight. Nevers was going to be Bonkke’s Bemba interpreter and before long a scholarship had been arranged for him to study in the USA.

Upon return from the USA around 1983, Nevers registered a ministry under the Companies Act. In those days, Kenneth Kaunda had banned registration of new religious movements. The only recourse for beginners like Nevers was to use the Companies Act. Victory Ministries Inc. was born and with it came the influence, the splendor and the pomp. The poor boy from Chinsali had finally broken into the big league. For Nevers, what Kaunda had said about Zambia being free in 1962, he was going to tweak it and call rebrand it as “Zambia shall be saved.” This was going to be his mantra for life.

That splendor characterized Nevers’ life is an understatement. Ministry supporters of his had given him a mansion in Riverside, Kitwe. Victory Ministries was a staple all over the country. Crusades were held across the nation. Nevers Mumba was that embodiment of those rich American preachers. If any one could say there is money in Christian ministry, Nevers had broken that ceiling. He was swimming in money, in power and in influence. Given that influence, it is true; becoming a politician would truly be a demotion.

And then something happened.

It was in 1997, in Kabwe. Nevers had somewhat a change of heart or mind. We may never know. Or may be he had another born again experience. He announced that he had formed an organization to push for political reforms in Zambia. The National Christian Coalition was going to take on President Chiluba’s government.

When Nevers is making the decision to challenge Chiluba in this manner. He knew that this move would come at great personal and ministry risk. Indeed, if Nevers had cared about his own welfare he knew that challenging the Chiluba government would be a risky move. And it is this move that many analysts of Nevers never pay attention to. By breaking with the Chiluba government, Nevers had demonstrated tremendous courage. He knew he was going to lose all the honor, splendor and respect the Chiluba government had accorded him. In fact, he knew that the words he had spoken to Frank Mutubila earlier would come back to bite him.

But for Nevers, the nation was at stake. Chiluba had become corrupt. The promise of a Christian nation was not leading to a more moral nation. In that context, Nevers felt he could do something about it. He risked it all. And indeed the response from those in power was swift fierce.

After the NCC announcement, Vice-President Miyanda went to ZNBC. He berated Nevers Mumba. The war of words had now become the war between two of the countries’ foremost Pentecostal firebrands: Nevers in one corner and General Miyanda in another. Clearly, Nevers had fallen out of the league. With those words from General Miyanda, Nevers’ world started to shrink. And it shrunk faster than Nevers had expected. The sacrifice he had envisioned for his people was going to demand more than he could handle. If he had been tested and tried many times while preaching, the new political frontier was a temptation on steroids.

Nevers’ fellow preachers were next to call him out. He was a traitor, some of them screamed. He was challenging his fellow brother in Christ, some exclaimed. Some of his detractors accused him of leaving the “calling”, a treasonous crime within the Pentecostal fraternity. The words he had used to Frank Mutubila were replayed over and over again. Some even suggested that he was selfish just wanting to get into politics for more power, splendor and influence. Any one who has watched Nevers knows that he has far given more to politics than he had taken out. And if there was any doubt about that – challenging Chiluba’s corruption was the first step.

Chiluba’s machinery continued to respond swiftly. The NCC’s status as a society was threatened. Nevers had to quickly transform it into a political party and rename it the National Citizens Coalition. Chiluba summoned the Zambia Revenue Authority to audit the Victory Ministries Inc., which had for all these years operated as a non-profit company. Nevers was going to pay back back-taxes in millions of Kwachas. All the privileges Nevers had were to be withdrawn. The diplomatic passport was withdrawn too. Nevers might have bargained for too much. And he had bitten a bigger chunk he could not swallow.

But when he started speaking about his journey towards politics, Nevers was loved by the opposition and by civil society. As a close preacher to Chiluba he had noticed the abuse and corruption going on with Chiluba. Nevers had noticed how the government was working against the Zambians instead of working for the Zambians. Chiluba’s closest confidante, Michael Sata, was also on hand to berate the “disgraced preacher”. It was Nevers against Chiluba, Miyanda and Sata. It was Nevers against the machines of power and the testing and trails were only going to get fiercer.

That mansion in Kitwe was going to be subject of litigation. Victory Ministries faced closure. The Zambia Shall be Saved program on TV was only saved by court intervention. The temptation of Nevers Mumba had only started to intensify.

Pentecostal political theology is still in its infancy as an academic subject. Many observers of Pentecostal political theology especially in Africa do characterize it as one that attempts to maintain the status quo. At best, most analysts see Pentecostals as perpetrators of the status quo. As such, Nevers Mumba’s decision to challenge the status quo was a bit unusual and a departure from what is expected of a Pentecostal preacher. In this regard then, Nevers becomes an embodiment of that spirit of resistance against corruption and abuse of power. After noticing that Zambia was going the wrong direction, Nevers bucked his own Pentecostal movement to challenge the excesses of his brother in Christ, Frederick Chiluba. This Nevers did at great cost to his own life and in fact, to his own integrity.

Pentecostalism is for many reasons predicated on an understanding of God who can do anything. As a faith that lacks a central authority, it is by nature quite chaotic and dynamic. In Pentecostalism God speaks directly, but more than that, God continues to speak daily to his people. As such, when Nevers says he could not join politics that is what God could have told him in 1992, but by progressive revelation may be God told Nevers something else by 1997. He had to abandon the church in order to challenge the corruption he saw in the Chiluba government.

This contrasts Nevers and President Michael Sata. Both of them were close to the Chiluba axis of power. But when he noticed corruption, Nevers broke with Chiluba at great personal and family cost. Sata on the other hand stayed with Chiluba in the middle of the worst corruption Zambia has ever seen. In fact, Michael Sata only left Chiluba after it was apparent that Chiluba had dribbled him on succession. Nevers’ decision to leave Chiluba’s MMD was a decision for others, for Zambia. Sata’s decision to leave, however, was based on personal ambition – the desire to be President and only leave corruption when he gets disappointed from being adopted as MMD candidate.

By the time Nevers was campaigning to be president of Zambia for the 2001 elections, he had been reduced to a pauper. The levers of power had worked their way into Nevers’ life. He had lost everything. The only thing he was left with was that Pentecostal confidence in the God who can “do anything.” Nevers had lost his house, his reputation stained, and his friends had run away from him. He had not committed any crimes, or may be the only crime was to cry out against the shoes, the designers Bombasa, and theft he saw in the Chiluba administration. And for doing that, he suffered for it. Politics for Nevers had been a demotion, but a demotion he fully believed was for the good of the nation.

By the end of the 1990s, Nevers’ children had just become teenagers. They needed a father who would provide for them. Having lost the income, the influence, the power, Nevers had paid a huge price for politics. His passion for the ordinary Zambia led him to make these sacrifices. He had some solace in a few friends outside of Zambia who would invite him to preach. Having lost the Kitwe home – Nevers had become a destitute. Politics and a passion for his people and his nation had not made him richer but poorer. And daily, he had to agonize about what happens to his children, and to his family. The days of splendor and glory are over. With a simple stroke of a microphone he could have returned to preaching full time. And as usual, there was going to be more people to welcome back the prodigal preacher.

The temptation of Nevers was too great to bear. The man who could advice presidents was now living in a guest wing at his in-laws. Cruel life. But for a good cause. The cause of his nation.

And then the call came.

Nevers Mumba’s one of his eleven challengers in the 2001 elections had now been president for almost a year. Levy Mwanawasa had been handpicked by President Frederick Chiluba to succeed him. When Levy won the elections, he adopted the fight against corruption as the motto of his presidency. Levy Mwanawasa started proceedings to have Chiluba prosecuted for corruption and theft. Nevers Mumba’s fight against Chiluba’s corruption had now been confirmed that Chiluba was no longer in power. President Chiluba, a man of the people had by the end of his second term faced serious accusation of theft and corruption.

When Mwanawasa made the moves to prosecute Chiluba, Nevers Mumba was among the first to support the decision. The Post Newspapers carried Nevers Mumba’s reaction to President Mwanawasa’s efforts. “It was an answer to God’s justice”, Pastor Nevers Mumba had said. May be, as he is saying this, he has in mind the injustice he had suffered at the hand of President Frederick Chiluba. For now, it was just early 2002 and President Mwanawasa had noticed, a Chinsali born Bemba, and former preacher who shared his ideals against corruption.

Levy Mwanawasa’s crack at the presidency proved difficult. Chiluba’s influence within the levers of power was so endemic. If he had to prosecute Chiluba, Mwanawasa needed partners. But partners within the MMD government proved difficult to keep. And so he had to look elsewhere.

Within the MMD, almost all of the senior leaders had been soiled by the Chiluba corruption. Vice-President Kavindele himself had won the MMD vice-presidency under very controversial circumstances at the 2001 convention. By 2003, the Bemba speaking faction in the MMD had been dissatisfied with Mwanawasa. President Mwanawasa was going to find a perfect fit to help him win the Bemba hearts and to fortify his fight against corruption.

It was early 2003. In an evening broadcast, President Mwanawasa had made a choice of a new Vice-President. Nevers Sekwila Mumba from the living room of his in-laws went through the formalities of appointment. He had become Zambia’s Vice-President. Becoming the first preacher to become Vice-President and the second Chinsalian to become Vice-President after Simon Mwansa Kapwepwe in 1967.

President Mwanawasa had found a partner in the fight. President Mwanawasa had also found a well-spoken preacher to help him deal with the public relations issues facing his government. Nevers was swift, flamboyant and hard working. His personality made him likeable. The image of a clean, handsome man coming into office enthralled many.

But this honeymoon was never to last long.

In 2004, Nevers’ crack at executive privilege had been curtailed. President Mwanawasa had fired him. And with his firing – Nevers’ trials and temptations continued.

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A Short Man Who Walked Tall: Life and Times of Frederick Jacob Titus Chiluba (1943—2011)

Posted on February 17, 2013 | 3 Comments

By E. Munshya wa Munshya

 Biographers differ about where and when Frederick Jacob Titus Chiluba was born. Even his names have raised controversy. Chiluba’s background had been such a thorny issue, that in the 1996 case of Lewanika and others v. Frederick Chiluba the Supreme Court of Zambia was invited to make a ruling on who was Chiluba’s father and where Chiluba himself was born. Before the court were three possible fathers: a Mr. Chabala Kafupi (a Zambian who claimed Congolese descent), a Mr Zahare (a Mozambican), or a Mr. Chiluba Nkonde (from Kawambwa) whom President Frederick Chiluba himself statutorily declared to have been his father.

As for his place of birth, the court heard several conflicting accounts. According to Dr. John Mwanakatwe, Chiluba was born at Musangu Village in Luapula Province. Another account declared that he was born at Wusakili in Kitwe. Some petitioners in the case of Lewanika and Others even claimed that Frederick Chiluba may have been born at Chibambo CMML Mission Hospital in what was then the Belgian Congo. When called to testify about Chiluba’s background in the same court case, William Banda told the court that Frederick Chiluba who was then known as simply Titus Mpundu lived in Mufulira and spoke a Congolese dialect of Lingala.

The court dismissed William Banda’s testimony and ruled in this case that regardless of who was Chiluba’s father, or where he was born, Frederick Jacob Titus Chiluba was still a legitimate Head of State and was a citizen of the Republic of Zambia.

This background is necessary in this article to point out how, a man without a clear family history rose up to become President of the Republic of Zambia. And in mourning him, we should all remember, that there are some qualities that made him stand out and made him gain the confidence of the Zambian people to elect him to the presidency in 1991. If there is anything that the life of Frederick Chiluba should teach us is the fact that regardless of our background and our limitations, destiny does not delude those who work hard. The story of FJT Chiluba is a story of how a man in our time lived to overcome his limitations and soared to lead the nation from dictatorship to a democracy.

Clearly as shown above, Chiluba had no rich family history. In death, his father still remains as mysterious as when he was alive. His place of birth is still subject to speculation. The fact that as a young boy he was expelled from a Kawambwa School also shows the kind of limitations that the young Chiluba faced growing up. In a society that looks down upon short statured people, it is clear that his height too could have one of those drawbacks. But the story of Chiluba is a story of inspiration in spite of limitations.

Here a man without High School education worked hard as a bus conductor to read a few A Level courses which he later admitted to have flanked. Additionally, not to be outdone by his many challenges, Chiluba went as far as Tanzania looking for opportunities. When he came back to Zambia in his twenties, he translated the knowledge he acquired while working in the Tanzanian Sisal industry into good use. He used his courageousness and his fearlessness to become a defender of his fellow workers. Through the trade union, a diminutive Chiluba had found an opportunity to talk and walk the tallest.

When Kenneth Kaunda legislated that all trade unions would be amalgamated and controlled from one umbrella body, little did he know that one of the leaders that would use this umbrella body to oust him was Frederick Chiluba. Indeed Chiluba used and enjoyed the visibility that his stature gave him. And as an outspoken member of the unions, it was just natural that the Zambia Congress of Trade Unions would appoint him its leader. The leadership position he held until 1991 when he was elected president of the Republic.

During Chiluba’s tenure at ZCTU Kaunda made several overtures to have Chiluba appointed into Cabinet. However, to his credit Chiluba refused. A man from a poor background was not quick to jump into the opportunities of richness. He did not want to abandon his fight for the workers in order to eat noble bread at Kaunda’s table. Chiluba, a figure of modest history demonstrated to Kaunda that he was a man of steel, and not even Kaunda could bend him. In 1990, Kaunda wanted to exploit Chiluba’s history. He claimed that Chiluba’s history is questionable. To this Chiluba simply responded, “I am surprised that President Kaunda claims that he does not know me…I am surprised that Kaunda claims that I have a questionable background…I am the one whom he wanted to make Minister of Labour, but I said no, Sir!” With these words, Frederick Chiluba demonstrated to Zambians that he had not been dented by Kaunda’s corruption and therefore was ready to lead the Third Republic.

In 1990, choosing a leader for the MMD was not an easy feat. But all sections of the MMD united around Frederick Chiluba. Even many academics in the movement acknowledged the intelligence and brilliance of Chiluba. Chiluba acquired this brilliance, neither in the walls of the classroom nor in the decors of laboratories but rather on the street. It is this courage, this education, and this street wisdom that made Frederick Chiluba fit to lead Zambia’s new political party.

And in consistency with his predecessor, one of the first acts of the presidency was Christian commitment. For Kaunda, three months in power in January 1965, he launched the United Church of Zambia, calling it a “national edifice.” For Chiluba, three months in power he addressed a prayer meeting at State House where he renounced corruption and witchcraft and declared Zambia as a Christian nation. This 1991 declaration of Zambia as a Christian nation is perhaps one of the most far reaching decisions that would long linger in history.

Chiluba was a fighter for worker’s rights as a union leader. He was incorruptible. He refused several of Kaunda’s overtures at corruption. He stood for principles. But history will ponder when he started entertaining excesses. The fact that, after his presidency in 2001, he was found to have had hundreds and hundreds of custom made suits, shoes, and underwear stands contrary to a Chiluba of the 1980s. In death, Zambia should continue to reflect on what may have gone wrong and on how a champion of the poor became so excessive.

If Chiluba defined himself as a political engineer, this was true in practice as it was in theory. A man who failed A’ Levels could still make it in academia. It was Warwick University that saw the potential in Frederick Chiluba and gave him a chance to enrol for a Master of Philosophy Degree. In his dissertation entitled “Democracy: The Challenge of Change” Chiluba explained political theory and committed himself to leave the presidency after he had served 2 terms. He was critical of the “President for Life” syndrome. But a few years before his second term was to expire, it appeared that he too was falling prey to the African disease and a Third Term started to infect a few of his close associates including his party secretary Michael Chilufya Sata.

To his credit however, Chiluba kept his word and left office after ten years. His political geniusness led him to sidestep his popular former vice-presidents Godfrey Miyanda, Christon Tembo, and national secretary Sata to appoint a political nemesis Levy Mwanawasa as his successor. This decision would haunt him for years to come.

Chiluba, a 1980s champion of workers’ rights and a 1990s champion of liberal democracy was under the Mwanawasa administration answering charges of theft. His six-year trial is as much part of his legacy as his other years. No doubt that some Zambians will remember Frederick Jacob Titus Chiluba for the charges of corruption he faced more than for the good things he did while in office. The pain of those charges and the embarrassment they brought against his personal integrity has been discussed by many.

Chiluba’s only redemption came in 2008, after the death of President Levy Mwanawasa. Mwanawasa’s successor, Rupiah Banda refused to call Chiluba a thief such that when the courts of law acquitted Chiluba of theft, Banda called him a damn good president. The Post Newspapers felt insulted by Banda’s words and continued to call Chiluba all sorts of names.

In death, however, Zambians should put their political differences aside and unite in mourn the passing of an extraordinary man. A diminutive man who walked among us with extraordinary courage. 

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“The Declaration of Zambia as a Christian Nation: Blessing or Curse”: What Gershom Ndhlovu Misses About Pentecostals

Posted on February 5, 2013 | 6 Comments

By E. Munshya wa Munshya

The book The Declaration of Zambia as a Christian Nation: Blessing or Curse is Gershom Ndhlovu’s debut book. It is available at amazon.com in kindle edition. It is a book for the modern person in many ways, first, as a publication utilizing modern technologies. And second, by how much it makes use of the Internet and social media for its resources.

For about $12.00, the book simultaneously downloaded to my kindle on all my three devices. The wonders of modern technology had fused with the awes of creative writing employed by Mr. Ndhlovu. I swiftly commenced my reading, switching between devices as time and opportunity allowed.

The publication of this book in kindle format has implications for Zambia. It is limiting to the extent that only those with Internet and a credit card could probably purchase it. This drastically restricts the reach of an otherwise good historical book. Second, this publication goes to show that the leaps towards modern technologies are here to stay. Zambian authors can therefore publish their books in the most inexpensive manner using such devices as amazon’s kindle. As such, Ndhlovu’s work is a mixture, both a blessing and curse.

Mr. Ndhlovu explains the purpose of his book in the last pages. He states that he was motivated to write this book because pastors and politicians who had been abusing the Christian faith to advance their personal agendas had disillusioned him. These pastors and politicians actually sidelined people, obviously like him, who “wanted a secular system of governance”. He then continues to state that he hopes that “the objective of promoting the separation of church and government would have been met by the facts presented” in his book. After reading the book, I have doubts whether Mr. Ndhlovu actually discharges this objective.

I think the book is good in presenting some political history of Zambia. However, even then, the history Ndhlovu presents is not necessarily new. He has repeated much of the same history written by other authors. Where he stands out, however, is when he addressed the story of Anderson Mazoka and the issue of Zambia’s struggle with homosexual rights. For a young nation like ours – the challenge for equality for our homosexual citizens remains a very important matter and Ndhlovu does very well to give this matter some visibility.

My critical review of this book therefore will centre on Ndhlovu’s treatment of the Pentecostal faith. This book on the declaration of Zambia as a Christian nation is undoubtedly a book about Zambian politics as much as it is about the Pentecostals as important players in the declaration drama.

First, when Ndhlovu mentions that pastors disillusion him – he has explained clearly which pastors he has in mind: the Pentecostal pastors. As such, in his attempt at perhaps questioning these pastors he mischaracterizes the history and doctrines of Pentecostals. For example, he mentions that Pentecostals seem to have grown in Zambia because people flocked there to identify themselves with the president. As a result, “some clergy became some the wealthiest people in the land through tithes that congregants had to pay and other connections they forged with the government.”

While I am sympathetic with Mr. Ndhlovu’s loath for Pentecostals, I find it rather surprising that he could actually misdirect Pentecostal history in this manner. It is open knowledge that Pentecostalism has grown exponentially in Zambia. But this growth cannot just be attributed to a Pentecostal president. In fact, Pentecostalism was on the increase from the early 80s. It is during KK’s tenure that Pentecostalism saw its most substantial development. Chiluba only brought visibility to Pentecostals, something that never existed under the dictatorial rule of Kenneth Kaunda.

It is common knowledge that there are very few rich pastors within Pentecostalism, especially in Lusaka. However, most Pentecostal pastors remain very poor – as poor as their congregants. Three rich pastors in Lusaka cannot be the standard to measure Pentecostals just as the rich Catholic Bishops should not be used as a standard for all other Catholics.

Second, Ndhlovu does not seem to appreciate the grievances that Zambians had with Kenneth Kaunda’s involvement with Eastern Mysticism. It is not for me to debate the merits or demerits of Zambians’ aversion for Eastern Mysticism. My duty is just to acknowledge this reality. In Zambia, Eastern Mysticism has been associated with religions foreign to Zambia. When Kenneth Kaunda started to experiment with these religions – most Zambians (Catholic and protestant alike) were uncomfortable with Kaunda. This was not just the case of overzealous Pentecostals misunderstanding Kaunda. Kaunda in his own book “Letters to my children” expressed how that he had abandoned his father’s Christian beliefs in favour of a more syncretic worldview. Meeting the Catholic leaders in the 1980s Kaunda even intimated to Archbishop Mazombwe that he had met an Indian spiritualist that had helped him understand God better.

And contrary to Ndhlovu’s characterization, when Kaunda hired the Indian mystics to be his spiritual advisors he fired all Christian advisors. This was most probably very offensive to Zambians and that is why it formed part of the many reasons responsible for Kaunda’s removal. In this case, it was not only the Pentecostals that de-campaigned Kaunda – even his own UCZ pastors were at the forefront in Kitwe in denouncing Kaunda’s sacrifice of the nation’s soul to Eastern religions.

Third, Ndhlovu then goes into theology. He discusses the merits and demerits of the “born again” concept and uses scripture and tradition to explain that evangelicals are probably mistaken in their view of being born again. When writing a book like this, probably Ndhlovu should have kept himself away from engaging in theological disputes. Church practices never make sense. They are not meant to make sense. If he holds that traditional churches are more biblical in requiring “catechism” which the Pentecostals don’t, that argument should be left to theology rather than history. Traditional churches also have doctrines and practices that they hold on to which in many cases don’t make biblical sense. Could we go on to the dogma of Immaculate Conception? Or the dogma of Papal Infallibility? Or even then of other doctrines held by historical denominations. When making arguments for or against the Church’s involvement in politics it is hardly a good strategy to discredit other denominations based on theology. Theology is an uncertain discipline to prove anything.

I must mention though that as a theologian, I found Ndhlovu’s love and treatment of Scriptures to be quite refreshing. His own writing does seem to confirm the idea that many Zambians take Christianity very seriously. It is no doubt that Ndhlovu relies heavily on the Bible to prove his points. Ndhlovu’s love for the Bible and his use of the Bible also fortifies the general view that Zambians are thoroughly Christian and would rely on the Bible to prove anything. If Ndhlovu feels that politicians have abused the Bible – he could also count himself among them. He has clearly relied on the Bible heavily to push his own agenda.

Fourthly, Ndhlovu mischaracterizes history when he claims that Pentecostal churches mostly welcomed the declaration of Zambia as a Christian nation without support from other denominations. Eight days after the declaration all the three church mother bodies issued a joint pastoral statement supporting President Chiluba’s decision. The EFZ, ECZ, and CCZ all took the declaration as a step in the right direction. The idea that the mainline denominations were opposed to the Declaration belongs to later revisions of history and not to the events surrounding the original declaration in 1991. Unfortunately, Ndhlovu takes the bait and documents a revisionist narration.

Fifth, Pentecostal churches have been shown in Ndhlovu’s book as being very supportive of Chiluba and of following him blindly. But a critical look at Pentecostals would show that Pentecostals are not a unified body and neither is it desirable that they should be so. To take a few voices and impose them on all Pentecostals is not fair analysis. In any case, it is from the Pentecostal fraternity that Chiluba got one of the greatest opposition. Pastor Nevers Mumba, at a time when it was not fashionable to do so, abandoned the pulpit and directly challenged President Chiluba’s corruption. Had Ndhlovu wanted to present a more balanced view of Pentecostal response to the excesses of President Chiluba he would have also mentioned Nevers as an opponent of Chiluba’s.

A few facts might be in order. Even if Chiluba was of the Pentecostal faith, most in his cabinet were actually non-Pentecostal. Indeed, the Post Newspaper when criticizing Father Chilinda noticed that it is actually St. Ignatius Catholic Church that had produced the most corrupt government officers under president Chiluba. What this demonstrates is that corruption and government excesses should not be portrayed as a preserve of one church or one faith.

Sixth, it is quite disquieting that Ndhlovu does seem to suggest that Pentecostals never supported Michael Sata’s ascension to power. Pentecostals were among the most ardent supporters of the Patriotic Front and many continue to support President Michael Sata today. Like most Zambians, the voting pattern of Pentecostals is very complex and they do not just vote based on faith. Had this been the case, Nevers Mumba would have enjoyed their vote since 1998.

Pentecostals are citizens like everyone else and they do support politicians not only based on faith but also based on their stomachs. They supported Michael Sata because they believed that he would help bring change to Zambia. In fact, one Pentecostal congregation produced 3 councilors for PF in the 2006 elections in Lusaka. Among these was the mayor of Lusaka. In fact, Lusaka at one time had two successive PF mayors of the pentecostal faith.

A book like Ndhlovu’s is a good start for history. It has lots of positives. But the Pentecostal story needed a response and I hope my critique above will help strengthen the very ideals that Ndhlovu wanted to promote. I highly recommend Ndhlovu’s book and look forward to further dialogue with him on some of these matters.

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“Dear Mr. Kick Ass” – Musamba Mumba Responds to Her Critic

Posted on January 4, 2013 | 2 Comments

Musamba Mumba, going by the name Proud Aushi or Proud Ushi Musamba Mumba is an active blogger whose political insight and prowess is exactly what Zambia needs. In moments of great political intimidation and paternalism Musamba speaks her mind out concerning issues affecting Zambians. She is a critic of President Sata and his Patriotic Front government. On Facebook she receives insults from supporters of the President. And yet she is fearless. In one of her Facebook posts, she answers one of her insulters. She has done this several times – but today, it caught my attention.

In solidarity with her, I wish to republish her statement below. I did not obtain prior permission to do this…and I just hope she understands….Dear Mr. Kick Ass.

Dear Mr. Kick Ass

Mr Kick Ass I want you to know the more threats you make the more guts and stubborn we become to share with the masses what we believe is right. It is our responsibility as Zambians, campaigners activists and the voters to “hold our elected leaders accountable.” This means we have the right to ask our elected members why a promise was not kept or undertaken. We also have the right to encourage other people in the community to put pressure on our leader to deliver the services we were promised when we voted them in. We have the right to join a group that will persistently call on our representative to follow through on pre-election promises.

It is our right and our responsibility as Zambians to speak up if we believe our elected representatives are not delivering what they promised us. We have the power to vote members in and we have the power to make sure they deliver what they promised. It is also our responsibility to make our elected leaders accountable in their administration. We must keep them accountable for their actions. They must act in accordance with the law and in a transparent manner. Just as we all have a responsibility to obey the law, candidates and leaders must also obey the law. If we know that a leader or an elected Member of Parliament has broken the law, we must not be afraid to report them to the police or to the responsible authorities to discipline them. It is our right and our duty to speak out against wrong doing and misconducts by our leaders.

We have the right to basic services in our communities, including health, schools, roads and clean water. We should not accept anything less. We must demand this of our representatives. Following up with our elected members is very significant to ensure that we are not fooled by our elected members who are only interested in making money for themselves and their own families, and who do not really care about the needs of the people in the Constituency and the nation as a whole. Whether the candidate we vote for gain the popular vote and declared the overall winning candidate or not, it is our responsibility as voters to be aware of the promises made to us and to follow up with the winning candidates about how they intend to keep their promises when we voted them in.

Zambia is a democratic nation. This means that we, the people, are the ones with the power, not politicians. We have the power to choose who our leaders are and we must use that power wisely. We have the power to tell our leaders when they are not doing a good job. Make your voice heard.

Musamba Mumba

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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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