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

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

Dr. Nevers Mumba

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.

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

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 NeverNevers Sekwila Mumbas 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.

Beyond “House, Money, Car”: Why Ms. Kay Figo Deserved Compensation

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

Zambia should change laws that unfairly disadvantage women - Munshya

Zambia should change laws that unfairly disadvantage women – Munshya

The facts of the 2012 case of one Ms. Kay Figo and her lover Mr. Van are very well defined. Around 2007 a 55 year-old Mr. Van  met a 21-year Ms. Kay Figo at a Kabwata nightclub. Due to love at first sight, Mr. Van that night invited Ms Kay to his Makeni home.  They  lived together for a period of 5 years. The relationship had broken down for at least two years of those five years. Noting that the relationship had broken down, Ms. Kay sued Mr. Van before the Lusaka Local Court. Ms. Kay’s argument was that she deserved compensation from Mr. Van for lost time while “dating” him. She wanted the court to recognise her time with Mr. Van as deserving some level of legal or equitable recognition. Some reports suggest that Ms. Figo had actually wanted this 5-year cohabitation to be recognized as a common law or some form of customary marriage. Mr. Van argued that, to the contrary, he did not need to compensate her because as far as he was concerned he was not married to her. It was also Mr. Van’s argument that during the 5 years he had lived with Ms. Kay he had tried repeatedly to reach her family so that he could get her to marry him. Reaching family suggest that Mr. Van might have wanted to marry her through customary law and practice. He argues further that she was not willing to introduce him to her family. As such she refused his proposal for marriage. That having been the case, he argued that she was un-deserving of any compensation.

This matter has received lots of media attention. Some in the media have characterized Kay as an “untaught” girl and as a gold digger just out to get Mr. Van for his money. Indeed that Kay was quite specific about the amount of compensation she wanted from her former lover, only went to stoke the suspicions in many that she was an opportunist going for a “house, money and car”.

The Lusaka Local Court reached its decision in October 2012. The local court justices dismissed Ms. Kay’s action declaring that since she had not been married to Mr. Van, she had no recourse to any compensation. The courts declared that there was no valid marriage contract upon which compensation can be ordered. As such, Ms. Kay was unsuccessful in this claim.

I find the decision of the court to be unfair. I wish to paint this decision within a wider framework of both law and tradition to argue that there is need for Zambia to change its legal framework as to recognise compensation in cases such as the one under consideration.

Ms. Kay Figo

Ms. Kay Figo

In Zambia today, there are principally two ways by which marriage can be contracted. The first is marriage under the Act and the second one is the marriage under Zambian traditions and customs. Marriage under the Act is primarily modelled after European system (sometimes misusing the Bible as justification). In this marriage, two people can contract a marriage and have it solemnized by the registrar of marriage or a gazetted minister of religion. The marriages contracted under Zambian laws and tradition is valid only after definite steps are taken. Legal jurisprudence right now as it stands in the Supreme Court precedence is that a marriage under customary law can only be valid if the man has paid some form of dowry or “lobola” to the family of the woman.

The consequence of the law as it stands right now is that regardless of how long a man has lived with a woman, that union cannot be recognized as a marriage unless he has “reached” the woman’s family and some form of dowry has been paid to the woman’s family. It is not my intention to change the way our traditions or the law defines what a marriage is. I would leave that up to the traditionalists and to the Zambian parliament.

My argument is that there has to be some form of legal or customary recognition of some unions contracted in the manner similar to Ms. Kay and Mr. Van’s. My argument is that leaving the law as it is would disadvantage women who are at the receiving end of unbalanced power within society. Indeed, in much of the English Common law jurisdictions, the law has moved on to where it imposes a “marriage” upon any couple that has cohabited for a specific period of time. In Canada for example, the “marriage under common law” is imposed upon any couple that has lived together for at least 12 continuous months. Privileges for such recognition vary from one Canadian jurisdiction to another.

In the case of Zambia, a couple should either be married or if not then it is cohabiting with the later receiving no legal or equitable protection at all. There is no middle ground. Marriage receives both legal and equitable protection while cohabitation does not. I do not wish to encourage cohabitation. Indeed, a marriage is far much better than two people just cohabiting. But there comes a time where women are disadvantaged due to the unfair balances of power after the cohabitation is over. Indeed, in the case of Ms. Kay and Mr. Van, the man took this young girl from a bar and lived with her for 5 years. That they were cohabiting without being married is clear for all to see. But in the event that the relationship comes to an end it would be unconscionable for the woman to walk out of that relationship without some amount of consideration.

She was a de-facto spouse to Mr. Van while she lived with him. She cleaned his house and took out his garbage every night or probably once a week. She worked hard for him. She provided him with the love and affection he needed. This love and affection made him work well and work hard in his businesses. For at least a majority of those five years, she was there for him. Honestly, that after these years she deserved some form of a “house, money or car” from him. He must not be allowed to dismiss her that easily.

Many commentators have discussed how a “gold-digger” Ms. Kay is. In fact, many have questioned her moral values as “ a girl picked from a bar.” Indeed, I find such criticisms very unfair. Why aren’t the same people condemning the 55-year-old Mr. Van who pounced on this innocent girl? Why is it that when it comes to such matters, the woman gets the most condemnation while the man goes scot-free? In fact, Mr. Van has been left off the hook such that there are reports that he has now started another “cohabitation” with another young woman.

If indeed, Ms. Kay is a bar girl, that criticism should also be leveled against Mr. Van who took her from the bar and within the same night took her to his house in Makeni. He loved her and lived with her for five solid years. Honestly, after having enjoyed her youth and her innocence, Mr. Van cannot and should not get away so easily. He must at least offer reasonable compensation to her. It is just the right thing to do.

She has lost the case. Probably, as a controversial musician, she will even sell more records after this episode. However, she will bear the brunt of this saga while Mr. Van goes scot free to begin pouncing on another girl at a shabeen in Shang’ombo.

Only that next time, we must make Mr. Van realize that once he picks another girl, he would not discard her so easily. The “not married to you” nonsense should not be tolerated. If you cannot marry the girl then do not cohabit with her. But if you so wish to cohabit with her then you should be able to offer any compensation that would normally fall on a marriage of similar length. Here is a number from Ms. Figo.

(c) E. Munshya, LLB, M.Div. (2012). This article was originally published on this website on 5 October 2012. It is republished here in 2014. All rights reserved.

Nevers Sekwila Mumba, Insincerely Yours: My Open Letter to the MMD President

Nevers Sekwila MumbaDear Nevers Sekwila Mumba:

I must register my disappointment at the manner you Dr. Mumba have behaved towards His Excellency the President of our Republic, His Excellency Mr. Michael Chilufya Sata, SC and Supreme Commander of our armed forces. Dr. Mumba what even enrages me more is the fact that even after His Excellency called your host on Joy FM to cancel the show, you defied him and went on with your program. That was seriously so wrong. I should write this letter to you with a very heavy heart.

But before I deal with the substantive issues you discussed on that radio show, let me first address the fact that our president even called you in the first place. You see, you wasted the president’s time. Don’t you know that His Excellency’s time is very precious? In fact, you cost the taxpayers a lot of money by letting His Excellency even make the call to Joy FM. Mr. President is a very busy man. He should not be subjected to acting for nonentities such as yourself. You see, by phoning Joy FM the president missed out on listening into some bedrooms across this country. This is exactly what he had told Chief Jumbe during the opening of the House of Chiefs. Mr. President said that he is such a powerful person who can and does listen to everything Jumbe whispers including the shrieks in his bedroom. Now with all these responsibilities, Dr. Mumba you decided to act irresponsibly so that the president would waste his valued time on a phone call to you.

That phone call also wasted his time that he could have spent in the red brick laboratory reviewing the DNA of some of your opposition colleagues. You see just like he had mentioned in Chipata, the president has data that Hichilema and the Reverend Father Bwalya are “abana ba mufigololo”. You know how he knew that? It is because, he is supposed to spend time, reviewing DNA that proves paternity. And so if you yourself, think that you are clever, the red brick boys have already taken a sample and very soon an announcement will be made in Malambo that you too perhaps are just like Bwalya or Hichilema. Now your actions that day, took the president away from working on this important national assignment.

Please Dr. Mumba never do this again. Never should you ever let the president waste his time like this. That day, he missed his duties in the red brick laboratory and of course in the red brick studio.

After having dealt with why you are such a time waster. I must now deal with the substantive issues you raised in that Joy FM interview. In fact, everything you said in that radio has been restated in the letter you sent to our president. Dr. Mumba you should know that the President is the authority on everything. This is what his relative Bo Phillis Lombe said about him. If you read the judgment she rendered in the case of Bo Mutuna and his friends, she stated very clearly that President Sata is the authority on everything. She also stated that Micheal Sata has information and receives information on everything and in fact, everybody. Do you know what this means?

I don’t even for a moment expect you to know what this means.  But let me help you understand it. It means that President Sata is not only the commander in chief of our soldiers, but he is also the commander in chief of mathematics, calculus, statistics and arithmetic. In fact, he is the authority on time, days and hours. It means that everything has no meaning except that which he assigns to it.

You are complaining about the constitution. You see, president Sata, just like he had promised, has delivered a people driven constitution within 90 days. That constitution is all over the country. In fact, it has been translated in all the mother tongues of Zambia. I know you have not seen it because you allegedly suffer from a serious bout of psychosis. On the other hand, the President does not suffer from any of these big diseases you allegedly lumped on him. He has evidence of this constitution, which was delivered within 90 days!

The president has also increased salaries of civil servants by 300% or is it 200%. How dare, do you say that our president is a liar? The civil servants went to the bank and, in fact, found that their salaries increased by about 10pin or is it 30pin. But you see, this does not mean that the president is a liar, all it means is that 300% changes meaning when it is touched by the commander in chief of arithmetic. And so civil servants are now smiling with this unprecedented increase in their salaries. I have heard that some nurses want to protest. But these nurses do not know how to count. If they knew how to count, or if they cared to learn it from the Chief Statistician himself, they would have come to the same conclusion that a salary increase of 300% would only add 10 pin or 30 pin to their previous salaries. Is the president a liar? I would say no Dr. Mumba. The president is just a good magician.

Dr. Mumba you accuse the president of having built nothing. Are you not seeing him every day commissioning already finished roads within 90 days? Go to Chawama, to Kuku and to Chinsali. The roads are there. The roads in fact, have been built in 90 days. With all this evidence only psychosis can make a person think otherwise. Go to all these places and you will find the finished roads, paved and sparkling clean as a result of the hard work of His Majesty, (ooops His Excellency). It really does not matter that in fact, none of these roads have been done in actual fact, and it does not matter that actually most of these roads were built and planned for by Rupiah Banda. You see again, President Sata is the authority on everything. If you want to see a new road go to him and he will grace you with the ability to see. Honestly, not even his ministers are convinced of all this development. This is why the other day he called them together and lambasted them for not seeing the good roads he alone has built for them. Quite unsurprisingly, it is only after they went to State House after that meeting, that suddenly, the brave ministers realized that in fact, yes, the nation is prospering again. I think you too, Mr. former vice-president need to visit State House and then you will see!

About the Euro Bond? You see, Dr. Mumba, the economic prowess of His Excellency is being demonstrated by his ability to get us deep into kaloba. Actually forget about that debt hole you helped us recover from when you were vice-president. President Sata has a marvelous plan for us. He will dig us deep into debt with the shylocks of New York. Imagine, this has never happened before. When his government wanted to ask for some kaloba in New York, the investors from there in fact quadrupled the amount of kaloba we could get. We went for $750,000,000 but they were willing to give us $7,000,000,000 of kaloba. Count the zeros. These zeros are dollars, American dollar un-rebased. This Dr. Mumba is good economic mismanagement. How then do you say President Sata is a leader of confusion? Is this confusion? Does confusion look like this? In fact, for your own misinformation, some of this kaloba has already been used up to pay civil servants the promised 300% increment, which in actual fact is only a 30pin increment. This is not foolishness as you supposed, it is known as good economic mis-management.

Lastly, but not least, you should know something. His Majesty (oops again, His Excellency) has a great plan for Zambia. He has imported free labour from China. He has installed riffraffs in his party and he has in fact, changed your slogan from Zambia shall be saved to something to the effect that Zambia shall be shamed.

After writing you this letter, I could not differentiate reality from fantasy. And so I had to ask the Drug Enforcement Commission (DEC) to give me some of that stuff they had stolen from Brebner Changala’s bedroom. May be Vermox will help me.

Insincerely Yours,

Munshya wa Munshya

The King With a Mouth: Why Nkhosi Mpezeni’s Political Outspokenness Should be Fair Game for Zambian Democracy

By E. Munshya wa Munshya

 In the run up to the recent Chipata Central by-election, Nkhosi ya ma Khosi Mpezeni actively campaigned for the PF candidate Lameck Mangani.[i] Nkhosi Mpezeni even appeared at a campaign rally addressed by President Sata where again he asked the people of Chipata to cast their votes for the Patriotic Front. As expected, the condemnation was swift from both the Electoral Commission of Zambia (ECZ) and from opposition parties. Some of the major arguments against Mpezeni’s political gestures were to the effect that the constitution forbids a chief like Mpezeni from participating in politics. This is drawn from Article 129 of the Constitution of Zambia which states that, “a person shall not, while remaining Chief, join or participate in partisan politics.” As for the ECZ, its desire to conduct free and fair elections meant that the Chipata electorate needed to be free from undue influence, especially that which comes from a traditional leader like Paramount Chief Mpezeni.[ii]

I wish to argue, that both Article 65 (3) & (4) and Article 129 in our constitution that seem to suggest that chiefs cannot express active political opinion has either been misunderstood or if not, it should be reinterpreted in ways that give effect to the constitutional liberties and rights that the chiefs, as citizens of Zambia, should enjoy. Indeed, if the interpretation of the said articles yields to the result that chiefs should have no political opinion, whatsoever, then these particular articles will deserve not our loyalty but our disdain.

With that in mind, a critical analysis of both Articles 65 and 129 yields to a clear conclusion that in fact, as the constitution stands, Mpezeni did not abrogate it by actively campaigning for the Patriotic Front. First, he did not stand for election as an MP. Second, he did not join politics, and thirdly he did not “participate in partisan politics.” Consequently, I wish to argue that as leaders, chiefs and other traditional leaders should be granted the freedom they need to freely express political opinion. This is good for democracy and indeed it is good for Zambia.

The idea that chiefs should not participate in politics is perhaps one of the greatest mistakes to come out of the 1996 amendments to the constitution of Zambia. President Frederick Chiluba and two of his closest collaborators Godfrey Miyanda and Michael Sata had pushed through constitutional amendments in 1996 whose main motive was to block some of their most vocal political opponents.

To block Kaunda, whose father descended from modern day Malawi[iii], the Chiluba-Miyanda-Sata triad decided to push an amendment that would require a presidential candidate to produce “a Zambian father and mother” (Article 34 [3] [b]). This was something that Chiluba himself could not, controversially, provide himself. It had to take the Supreme Court to correct this obvious glitch in the case of Lewanika and Others v Chiluba. Additionally, to block Mung’omba the triad pushed through another amendment. Article 34 (3) (f) would require any presidential candidate to have been domiciled in Zambia for 20 years prior to the elections. Dean Mung’omba, having lived overseas for much of the 20 years prior to the 1996 elections, could not possibly satisfy this requirement. However, to-date, the domicile rule has not been tested in court. Indeed, if Article 34 (3) (f) were to be applied then several politicians including Dr. Nevers Mumba would have been ineligible to stand in the 2001 presidential election.

However, the most relevant amendment to our argument here concerns that of the chiefs’ participation in politics. Article 129 eloquently stated that, “A person shall not, while remaining a Chief, join or participate in partisan politics.”

That Chiluba was going to stop KK from contesting in 1996 had become very apparent by the time the new constitution was being formulated. The problem for the Chiluba-Miyanda-Sata axis of power was that even if Kaunda were to be disqualified in 1996, there was a rising star within UNIP who was going to rise up to the task. As such, to ensure that UNIP would not provide any viable candidate to challenge Chiluba, Sata and Miyanda’s MMD the government decided to push through a provision that forbade chiefs from participating in politics. In 1996, Kaunda’s party vice-president was Senior Chief Inyambo Yeta, who just like KK, had become quite a robust candidate with enough clout to threaten Chiluba and his collaborators’ hold on to power. That being the case, it is clear that Chiluba’s government was not sincere in its decision to push through this amendment, especially that it was aimed at stopping Inyambo Yeta. As such, from history itself, it is clear that this article in our constitution was born out of seeds of injustice.

Each time we condemn an outspoken chief like Mpezeni from holding political views we assert this unfair chapter of our history. Each time we condemn a chief for holding and communicating political views we reenact a play designed by the political engineer himself. In fact each time we condemn Mpezeni, we play into a story that was hatched in 1996 by non other than Michael Chilufya Sata and his malevolent colleagues in the MMD.

Those who argue against traditional leaders’ participation in politics point to the leadership role that these chiefs play as leaders of their chiefdoms. However, traditional leadership should not and cannot be the barrier. In fact, upon close scrutiny this argument falls flat. According to the Chiluba-Miyanda-Sata triad, the main reason why it decided to proscribe chiefs from active politics is because “chiefs needed to be above politics as custodians of tradition”. In the present context, it would be expecting too much to expect that our chiefs should not be political when, in fact, the Chief of our State itself is a partisan demagogue. Indeed, the argument that chiefs should not proffer political opinions because they are above politics is unfair and a violation of their rights to speak and hold different and varied beliefs.

Zambia’s current Chief of State, Michael Chilufya Sata is a partisan political demagogue, why then should we expect any differently from traditional chiefs whose territorial influence is just a few thousand people at Mtenguleni or Sokontwe as the case may be? If we really meant to exempt traditional leaders from politics, on the basis that partisan politics is bad, then the president should have been the first to be exempt from partisan politics because as Chief of State he clearly does have a non-partisan role. However, that is not the case. President Sata is so partisan that one would wonder whether he could use the powers of the state to defend even a single member of the opposition if they were to be attacked by outside forces. This is the Chief of State who is daily singing about how he would deny state privileges to those people who do not vote for the likes of Lameck Mangani in Chipata, Livingstone or Kafulafuta. If it is all right for Sata to be a partisan demagogue, we do our traditional leaders great injustice by confining their psyche to a prison of conscience.

And in fact, today we could be condemning Mpezeni and tomorrow the same proscription could be used by those in power to muzzle political opinions of chiefs that are opposed to the Patriot Front and its one-party agenda. The berating of Chief Jumbe in the House of Chiefs by President Sata should send shivers to any well meaning Zambian. Surely if Jumbe is proscribed and threatened when he speaks out, it becomes apparent that the Patriotic Front agenda might soon land the whole country into oblivion. I want Mpezeni to vocalize his support for the PF, in the same manner that I do desperately want Chitimukulu or Jumbe to vocalize their disdain for this incompetent PF government.

In this regard then, we should perhaps answer a very momentous question. Given the provisions of articles 65 and 129 of the Constitution itself, does it in its current form forbid Mpezeni from supporting a candidate of his choice? The ECZ says the constitution forbids Mpezeni. I hold otherwise. It is my submission that a strict reading of this provision does not contemplate to forbid a chief from expressing political opinions. Indeed, this article forbids chiefs from being candidate in an election and from holding a partisan political position. That being the case, Zambia might have overreacted against Nkhosi Mpezeni. He was not participating in politics and neither was he standing as a candidate. Mpezeni was only openly campaigning for the party of his choice – in keeping with the sacred rights of citizenry. He holds no party position in the PF and as such, it would be too onerous on our democracy to proscribe conduct, which is within his rights and liberties.

That being the case, we should then turn to the theory, advanced by some, that chiefs might influence an election in one way or another. From the Zambian experience since independence, there is no model that has been repeatedly rejected through empirical evidence than this theory that holds that chiefs do influence their subjects politically.

From history, evidence is scanty to support the notion that subjects are easily influenced by the political persuasions of their chiefs. Perhaps a little historical analysis might help shed some light. In the January 1964 elections, the people of Barotseland went against the wishes of their king to elect Kaunda’s UNIP. UNIP got 56 seats while Nkumbula’s ANC won 9.[iv] The idea that the people of Barotseland would vote a certain way due to the political persuasions of their king was proved wrong that January. In the 1991 elections, Chief Mporokoso was the UNIP candidate for Mporokoso Constituency. His candidature did not in any way mean that his subjects would automatically vote for him. In fact, it was one of his subjects Ackim Nkole who beat Chief Mporokoso by a wide margin. As recent as 2011, it was no secret who Mwata Kazembe was supporting in Mwansabombwe. However, the subjects of the Mwata did not succumb and instead overwhelmingly voted Sata and the PF. Perhaps we should in this case include numerous examples in the Southern Province where the people of the South turn out to vote for UPND even when their chiefs’ preferred candidates and party is the MMD or the PF as the case may be.

Indeed, if there was any doubt about these fears, the recent example should settle the matter. In spite of a spirited campaign by Mpezeni, the people of Chipata voted for the MMD. Therefore, the theory that chiefs should not hold political views because they will unduly influence their subjects does not survive close scrutiny.

That being the case, it would be in the interest of our robust democracy to give back chiefs their voice and their heart. Indeed, chiefs should be free to express themselves and to make known what they believe in their hearts. A constitution therefore, that muzzles the voice of chiefs need revision.

Having established, above, that subjects do not necessarily support their chief’s preferred political candidates or parties, it would be a mistake to think that these chiefs’ personal popularity fluctuates according to these political views. This is an area that in fact might need further study. In spite of voting or supporting candidates opposed to their chiefs, most subjects nevertheless still hold their chiefs in very high esteem. This does seem to suggest a disconnection. Subjects could still respect a chief as their traditional leader and yet not let that respect spill over into any significant political influence. The examples I have given above might need a little elaboration. I explain below.

After the 1964 elections, Kaunda mistakenly thought that he could then interfere with the Litunga since the people of Barotseland had in effect rejected the Litunga’s preferred party. With a landslide in Barotseland, Kaunda never expected what was to come. Once he had perceived the Litunga’s weakness, KK wanted to pounce and humiliate Mwanawina II. Winning an election is one thing, but disrespecting a chief is quite another. Kaunda’s maneuvers backfired when within a few months he lost very influential Lozi members of his UNIP. He quipped in anger that the “Lozis had decided to align themselves to their tribe and their chief rather than the country and his UNIP.” This model has been confirmed in other chiefdoms as well. No one should perceive differing political persuasions between the chiefs and their subjects and think that they could exploit it to their political advantage. It always backfires. Even after the obvious MMD preference of the Mwata Kazembe, he has escaped unscathed from this support. There has not been any backlash for his backing of the losing MMD. He remains chief and a very well regarded and respected at it.

As for Mpezeni, he might have expressed his opinions the way he did. But the MMD should not for a moment take it to mean that they can then exploit this weakness to their political advantage. The same people who voted for MMD in Chipata would if they see Mpezeni attacked still come to his defense. Mpezeni is their king after all. And apparently, anyone who fights a chief might as well be prepared to get some backlash from his subjects, even if in actual political currency, the result could be the opposite.

In the interest of democracy Mpezeni, using slang, should be given a break. And as the idiom says we all might just need to “cut the Nkhosi ya ma Khosi some slack”. Our democracy is dependent upon free opinions expressed by its people, and these people include their royal highnesses. Both Jumbe and Mpezeni should be encouraged rather than dejected in communicating their political persuasions.

 Join me on twitter and let us continue the conversation. My twitter handle is @munshyamunshya.  

When a Cobra Spits at Crocodiles: Why President Sata Shouldn’t Fight the “Bashi Lubemba”

Elias Munshya, LLB (Hons), MA, Mdiv.

The Issue

President Michael Chilufya Sata in May 2013 used his powers as President of the Republic of Zambia to withdraw government recognition of one Henry Kanyanta Sosala as Senior Chief Mwamba of the Bemba people. According to President Sata, Sosala did “not fully undergo Bemba rituals for him to ascend to the throne of Senior Chief Mwamba.”[i] Just what made Sata to be the arbiter of Bemba rituals is an open question we attempt to ask in this article.

After some hesitation, Henry Sosala succumbed to presidential pressure and conceded to President Sata’s demands. He resigned from the Mwambaship and apologized to President Sata for the embarrassment he had caused him.[ii] On the other hand, the Bemba traditional elders were quite displeased with what they perceived to be President Sata’s interference with their traditional matters. In a meeting held with President Sata’s emissaries, Chiefs Affairs Minister Nkandu Luo and Defence Minister Godfrey Mwamba, the Council of Bemba elders (Bashi Lubemba) expressed concern at the president’s action and asked that Sata stops to interfere in traditional affairs.

President Michael Sata - The King Cobra

President Michael Chilufya Sata – The King Cobra

In August 2013, two months later, the same traditional council sat and decided to pick the same de-gazetted Henry Kanyanta Sosala as the next king of the Bemba Commonwealth. This in many ways went against President Sata’s wishes. First, the President had initially degazetted Sosala as Chief Mwamba. Second, Sosala himself had succumbed to presidential pressure and left the throne. Third, it is quite unusual that the Bemba Traditional Council would go ahead to grant supreme control to a chief who had been degazetted by the president.

That this act by the Bashi Lubemba will set of some stand off with President Sata is clear. Some reports suggest that president Sata has personal interest in the Bemba chiefdom that makes him desire to have a close relation of his to ascend to the Bemba chieftainship. In clear defiance of his wishes, the Bashi Lubemba have made perhaps one of the clearest statement to president Sata that they will not succumb to his wishes. As far as they are concerned, they have made the choice of a new paramount chief of the Bemba, and that person will have to be Sosala – the same person, President Sata degazetted.

In this battle, it is our opinion that President Sata should desist from causing any further confusion in the Bemba traditional affairs. It is also our submission that if president Sata decides to act any further against Sosala or against the Bashi Lubemba, it will be a battle he cannot win. And this is so, for several reasons.

Since Sata Is Bisa, What Stake Does He Have in The Bemba Empire?

It is important to set aside some misconceptions concerning the Bemba Empire. There has been some reports that President Sata being Bisa of Mpika cannot and should not have any interest in the Bemba traditional affairs. The truth is that in the present state of affairs, while the Bisa peoples and the Bemba peoples remain distinct, there has been incessant blurring of that distinction. As such, the argument that President Sata does not have tribal or familial interest in the Bemba affairs because he is not Bemba is an accusation not steeped in reality.

In the Bemba and Bisa ruling aristocracy, there is no distinction between a Bisa and a Bemba. We could take one example: the Chibesakunda chiefdom of Chinsali. Even if the Chibesakunda chiefdom is a chiefdom of the Bisa, Chief Chibesakunda herself is supposed to be a Bemba belonging to the Ng’ona clan. Essentially, then the Bisa people of Chinsali have a Bemba lineage ruling over them. However, with intermarriages and in fact, matrilineal system of succession the distinction that should exist between who is Bemba and who is Bisa in the royal household of Chibesakunda and indeed among their subjects has been blurred further.

The auxiliary blurring of these lines happened a few years ago when the Chibesakunda Royal Court appointed Bob Bwembya Luo, a Bemba from the Ng’andu clan to become the Chief Chibesakunda. This brought some protests from a Bisa and former parliamentarian Newton Ng’uni[iii] who in March 2007 wrote that the new Chief Chibesakunda was actually a Bemba from Abena Ng’andu and as such could not ascend to a throne reserved for Abena Ng’ona. President Mwanawasa’s government was swift in gazetting this new Chibesakunda, partly to bring stability to the chiefdom, which had not had a substantial chief for decades.

Using what happened with Chibesakunda as an example, the choice of a chief by a royal council is almost sacrosanct; courts of law do not and should not interfere with choices done by the royal council. This being the case then, those who think that a Bisa has no interest in the Bemba traditional affairs unfairly target President Sata.  We must submit however, that President Sata’s interest or interference in Bemba traditional affairs should not go to the extent of meddling with the Bashi Lubemba.

The Bashilubemba

Traditionally, the Bashi Lubemba is the Bemba Royal Council that is custodian of Bemba traditions. It also carries out the sacred duty of choosing of the successor of the Chitimukulu throne. In Bemba traditional management the second most senior throne next to the Chitimukulu is the Mwambaship. After Mwamba comes several other chiefs such as Mpepo and Nkula. It was customary that after the death of Chitimukulu it is the Mwamba that accedes to the throne.

However, it is not automatic that Mwamba becomes Chitimukulu for it is the Bashi Lubemba who appoints a Chitimukulu. A few years ago, the Bashi Lubemba in favour of a chief Mpepo bypassed a chief Mwamba. Chief Mwamba then decided to take the matter to the High Court. At first instance, Justice Anthony Nyangulu declared Mwamba to be the next Chitimukulu and chastised the Bashi Lubemba for not following customary law that made a Mwamba to be the next Chitimukulu. Mpepo appealed against this decision and the Supreme Court reversed Justice Nyangulu’s decision. In that case, the Supreme Court made some very important pronouncements with regard to customary affairs in Zambian traditions.

According to the Supreme Court, even if customary practice mostly favored a Mwamba as the automatic successor to Chitimukulu, the decision of the Bashi Lubemba was final with regard to whether Mwamba would become Chitimukulu. For Justice Silomba,

“the Bashi Lubemba have the final say over who takes over as Chief Chitimukulu and are not restricted to the system of ladder climbing and seniority.”[iv]

Essentially then, the Bashi Lubemba are the custodians and the courts of law should not replace their customary advice and input. Fundamentally, it is the Bashi Lubemba who make Bemba chiefs.

The Bashi Lubemba are important in making the Chitimukulu because they comprise both the rulers of the Chiefdom and the priests of the chiefdoms. The Bemba royal house strikes a balance between the ruling clan (Abena Ng’andu) and the ritual priests (Bakabilo). A Chitimukulu can only succeed in leading the Bembas if indeed she has the blessing of the ritualists. Royal birth does not automatically entitle one to being Chitimukulu; it must be supplemented by the approval of a clan different from the Abena Ng’andu. It is in this vein, that the decision from the Bashi Lubemba should be respected.

Should Sata Be The Bemba Ritual Expert?

President Sata’s original decision to dethrone Sosala as the Chief Mwamba was that Sosala had not followed proper ritual procedure. The problem here is that the President even if as a Bisa does have an interest in the Bemba chiefdoms, does not have expertise to advise the Bemba royalists about what that ritual procedure must be.

President Sata is president of our republic; he is unfortunately not an expert in ritual practices of the Bemba peoples, even if he belongs to the greater Bemba commonwealth. Indeed, if the Bashi Lubemba are wrong in their choice, it is not for President Sata to make that call.

In fact, there is precedence where a white Catholic priest, Bishop Joseph DuPont, acceded to the throne of Mwamba with full approval from the Bemba royal household. As far as tradition is concerned, it is what the Bashi Lubemba decide that should carry the day with regard to matters of succession. If indeed, the Bemba royal household had erred to have Sosala as Chief Mwamba, President Sata could not unilaterally decide to reverse such a resolution.

Bishop DuPont - A Catholic Priest who reigned as Chief Mwamba of the Bemba People

Bishop DuPont – A Catholic Priest who reigned as Chief Mwamba of the Bemba People

Leaving the Sosala and Mwamba saga aside, the recent decision of the Bashi Lubemba to recognise this same Sosala as Chief Chitimukulu makes things even more difficult for President Sata. Sosala has several things going well for him. First, he was the substantive Chief Mwamba chosen by the Mwamba royal household, and secondly, he has become the choice of the Bashi Lubemba to be the next Chitimukulu. With these two going for Sosala, President Sata is in a serious quandary as to what he would do next.

The Tests From the Judges

For sure, there is no dispute between any competing pretenders to the Chitimukulu throne. The choice of customary practice, going by Justice Nyangulu’s test favors Sosala and so is the supremacy of the Bashi Lubemba (going by the Supreme Court test).

This being the case, President Sata in combating the Bashi Lubemba will quickly realize that a Cobra cannot quite win if it fights the Crocodiles. Abena Ng’andu with their colleagues the Bakabilo, in the Bashi Lubemba, will shame the Bisa Cobra, again.

© 2013, E. Munshya wa Munshya, LLB (Hons), M.A, M.Div., For more information about our articles please visit http://www.eliasmunshya.org.

Dora’s Catch 22: Why ECZ is Right About S.22 of the Electoral Act 2006

By E. Munshya wa Munshya

Petitions

Dora Siliya

After Zambia’s elections of 2011, the party that won the elections, the Patriotic Front (PF) decided to petition dozens of seats won by the opposition parties. Among other reasons for so petitioning, the PF contended that these particular seats had been won either fraudulently or corruptly. Among the seats petitioned are those of close associates of former president Dr. Rupiah Banda who had lost the presidential election to the Patriotic Front’s Michael Chilufya Sata.

The Supreme Court of Zambia nullified the election of Dora Siliya for Petauke, Mutolo Phiri for Chipata Central, and Maxwell Mwale for Malambo. Several other seats were also nullified triggering by-elections in all these constituencies. Some sections of Zambian society have held rather than good will, the PF triggered these by-elections so that they could get the needed majority in parliament to have Zambia revert back to the dark ages of the UNIP dictatorship.

There has been debate about whether under the current electoral laws; a candidate whose election is nullified can stand for re-election in the nullified seat. This question became even more heated after the ruling Patriotic Front accused the Electoral Commission of Zambia of flouting electoral regulations by allowing the nullified candidates to recontest their seats. In addition to the ruling party, a local civil society organization, the Transparency International also asked the ECZ to bar the likes of Dora Siliya, Maxwell Mwale or even Mutolo Banda from re-contesting their seats since the Supreme Court had nullified their elections.

At the heart of this dilemma is the provision from Section 22 (b) of the Electoral Act of 2006 which states, inter alia, that:

Any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the High Court upon the trial of an election petition under this Act shall not be qualified for election as a member of the National Assembly for a period of five years from the date of the conviction or of the report, as the case may be.

Obviously, the Patriotic Front is interpreting this provision to mean that people like Dora Siliya whose election to parliament were nullified by the courts of law should be barred from re-contesting. The Electoral Commission of Zambia (ECZ) on the other in a statement released 1 August 2013, has argued that the ECZ can only act to bar candidate if the High Court provides to the ECZ a report pursuant to Section 104 of the Electoral Act 2006. Section 104 (6) and (7) of the Electoral Act 2006 states as follows:

(6) Where it appears to the High Court upon the trial of an election petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election petition relates, the High Court shall, at the conclusion of the proceedings, prepare a report stating—

(a) The evidence given in the proceedings in respect of the corrupt practice or illegal practice;

(b) The names and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the Court, committed:

Provided that the Court shall not state the name of any person under this paragraph unless the person has been given an opportunity of appearing before the Court and of showing cause why that person’s name should not be so stated.

 (7) The Registrar shall deliver a copy of every report prepared by the High Court under subsection (6) to—

(a) the Commission; and

(b) the Director of Public Prosecutions.

(8) The Commission shall, as soon as it receives the report under subsection (7), instruct an officer to prosecute any person stated in the report.

It is my opinion that the ECZ’s interpretation of section 22 using section 104 is correct at law. As such, for reasons presented below, I would hold that it was never the intention of Zambia’s electoral laws to disqualify any candidate from re-contesting a nullified seat without further instruction and deliberation from the High Court.

The Civil and Criminal Law Distinction

 To clear the confusion, we must first begin by differentiating between the goals of two different aspects of legal suits tenable in the Zambian judicial system: a civil suit or a criminal suit. Each of these come with different remedies and in fact, has different goals. As such, in order to understand the desired outcome of any legal suit, it would be important to first understand its categorization at law. A criminal offence is usually aimed at punishing an offender and is commenced by the state against an offender. An interested party who takes another party to court to seek specific or general remedies on the other hand initiates a civil case. In the context of an electoral petition, a petitioner asks the court to nullify the election of a respondent. The parties to an electoral petition are private individuals contesting competing rights to a seat in parliament.

Criminal law on the other hand has different goals in mind. It seeks to punish offenders for specific offences that have been proscribed through the Penal Code and other laws. According to the constitution of Zambia, the Director of Public Prosecutions is the primary officer that prosecutes criminal offences in Zambia.

That being the case, it is clear that Section 102 (3) of the Electoral Act of 2006 specifically mandates the High Court to “exercise such powers within its civil jurisdiction as it may deem appropriate.” This provision, therefore, shows that the main element of an electoral petition is civil rather than criminal.

Having established that electoral petitions are primarily civil suits, the next issue to deal with concerns remedies. In most cases, a petitioner asks the High Court to nullify an election based on several grounds. The petitioner primarily contends that the election was not free and fair. Based on the evidence she provides, she can then have the court rule in her favour and nullify the election of a respondent.

This then brings us to the question of the standard of proof. In a civil case, the standard of proof needed to prove a case is a balance of probability. This means that it is more likely than not that evidence rendered proves a particular point. However, the Zambian Supreme Court has raised the standard of proof needed in electoral petitions. In the case of Lewanika and Others v Chiluba and in the newer case of Sikota v. Mabenga the Supreme Court ruled that the appropriate standard for proof in electoral petitions should be slightly higher than civil case’ balance of probabilities but must be below the criminal threshold of “proof beyond reasonable doubt.”

Indeed, there is not standard higher than “proof beyond reasonable doubt.” This standard is used in criminal proceedings. The reason for a higher standard in criminal proceedings is that no innocent person should be punished for a crime they never committed and that it is in the interest of justice that the State which has almost unlimited resources should be able to gather all resources necessary to prove its case.

Having dealt with some background information above, I must now turn to the question of whether the drafters of the Electoral Act intended to disqualify candidates from re-contesting their seats. To do so we must focus on the actual text of the Electoral Act.

According to section 22 of the Electoral Act there are several categories of people and situations that would lead to a candidate being unqualified.

Criminal Conviction Bars A Candidate

 First, any person who is convicted of any corrupt practice or illegal practice shall not be qualified. Without further complications, this provision does seem to contemplate a clear criminal procedure. If a person is convicted of any corrupt practice or illegal practice, they are then disqualified. The term conviction is used only in the context of criminal proceedings. It is ridiculous to say that a person was “convicted” in a purely civil matter. The correct term to use in civil cases is “liability” or terms to that effect.

Specifically, when it comes to bribery and corruption, it is the DPP and the Anti-Corruption Commission who can bring a bribery or corruption case against a particular candidate. The ACC Act of 2012 (s.35 (1)) provides thus:

 (1) The Commission has jurisdiction to investigate and prosecute any offence of bribery prescribed under section seventy-nine of the Electoral Act, 2006.

It is Section 87 of the Electoral Act 2006 that explains further punishment for those convicted of an “illegal practice”. The guilty shall be liable on, conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both.

Again to reiterate here, once a candidate is convicted not only would they not qualify to stand for re-election, they would also face jail time. Just as stated above, it is important to differentiate what is going on in a criminal trial and what obtains in a civil case. It is impossible to have a criminal trial within the context of an electoral petition. What an electoral petition can do is to make specific recommendations and observations upon which the DPP may make independent Judgement of whether he could proceed to charge the offender with criminal offences.

“Report” From the High Court Can Bar A Candidate

The second category of people disqualified are those who are “reported guilty” of any corrupt practice or illegal practice by the High Court upon the trial of an election. The first limb of section 22 is quite clear; any one convicted is not qualified. In the second limb however, very interesting words are used. For a person to qualify under this limb, they must have been “reported guilty”. The first one was to do with conviction, while the second limb deals with “report.” This report is only explained in Section 104 of the Electoral Act of 2006 as being the report that the High Court makes to the ECZ. And so, it is expected that if during the electoral petition, the High Court find reasons why a respondent should be “reported”, the High Court will then send the ECZ evidence and transcripts and report such a candidate. The consequence of a report triggers either a criminal prosecution by the DPP or a disqualification from contesting further elections.

The challenge, the “report” provides is that, it emanates from a civil case – that is it emanates from an electoral petition and yet has consequences similar to criminal convictions for corruption. In the case of Sikota v Mabenga, the court held that even if the case was of a civil nature, the respondent’s actions where so outrageous that they bordered on criminality. In its Judgement, the Supreme Court even went to the extent of recommending the prosecution of Mr. Michael Mabenga for corruption and theft of CDF funds. It is this kind of clear Judgement, which in my opinion triggers the application of S.104 (7) of the Electoral Act. Without categorical report about corruption from the High Court, it would be difficult for the Electoral Commission of Zambia to act and bar a candidate.

Conclusion

Without clear guidelines from the High Court that a candidate did in fact participate in some form of corruption or bribery of theft, it would be unfair to disqualify them from contesting their vacant seats. On the other hand, if a candidate has been convicted of corruption or stuff like that, then they must not stand as candidates. As for Dora Siliya, Michael Sata and Wynter Kabimba should prepare to meet her in Petauke as their “catch 22″ has failed.

(c) 2013, Elias Munshya wa Munshya is not a member of the Zambian Bar. Specific legal advise should be sought from members of the bar. This article is for educational purposes only and does not intend to convey legal advise.