Tag Archives: Zambia

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

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

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

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

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

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

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

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

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Edgar Lungu

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

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

 

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

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

E. Munshya, LLM, MBA, M.Div.

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

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Petersen Zagaze (Pic from Facebook)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Download Zambia’s New Constitution (as amended)

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

 

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

Elias Munshya, LLM, MBA, M.Div.

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

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

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

 

E. Munshya, LLM, M.Div.

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

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Sky Banda of Kitwe

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

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

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

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

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

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

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

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

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

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

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Bishop Sky Banda – (picture courtesy of Maranatha Church)

 

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

I Object: Why Ms. Libongani should not come to Canada as Zambia’s High Commissioner

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

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

To all police officers, please serve Zambians impartially. Do not shoot the innocent. Do not curtail liberties of our people. Protect President Lungu just as much as you would protect others. If you do not behave well and choose to behave like monsters, note that the world is watching, and politicians will not protect you from the international backlash that will come your way.

Each pound of flesh adorning the skeletons of Zambian citizens is sacred. The blood flowing through the veins of our citizens is precious. The legs of our citizens do not need permission from anyone to crisscross the length and breadth of our sacred soils. Zambians have the constitutionally protected freedom of thought, and the freedom of association. Just as their blood flows freely in their veins, citizens must have the liberty to flow freely from Mongu to Milenge.

Those in power must be accountable to the people of Zambia. However, in a globalized world, accountability goes beyond Zambia’s geography. Leaders in Zambia who cannot be held accountable in Zambia, can be held accountable anywhere else on the planet. You cannot abuse Zambians in Zambia, and hope that you will get away from being accountable to Zambians not living in Zambia. Diaspora Zambians are not just “distant noisy makers”, they are part and parcel of the nation. Diaspora Zambians are as Zambian as those who are at home. If you mistreat Zambians in Zambia surely know that Zambians in the diaspora will hold you accountable.

Ms. Stella Libongani has been appointed as ambassador-designate to Canada after being dismissed as the chief of police. As a Zambian resident in Canada, I object to Ms. Libongani’s appointment. I would request the Canadian authorities to withhold their diplomatic accreditation for this particular ambassador designate.The government of Canada should be notified of the brutality of Zambia’s future diplomat coming to Ottawa who has presided over a police force in Zambia that has not respected individual liberties of our people.

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Stella Libongani

As Chief of Police, Ms. Libongani blocked Zambians from mingling freely. She insisted that Zambians needed permission from her in order for them to buy Chibuku at Chisokone Market. Those who did not get permission from her and her police force were allegedly brutally assaulted, shot at and grievously harmed. Armed police officers stormed into churches in April 2015 to cause mayhem and defile religious liberties. A citizen had his home searched and drugs planted on him during Ms. Libongani’s reign as police chief (she did not plant those drugs, however). While Libongani was police chief, police prevented citizens from visiting Chipata and Chingola, chasing them “nge mfuko isho bapepeka mubwendo”. When asked, Ms. Libongani used the Public Order Act as justification for why citizens of our republic should be chased “nga bakapanga”. Ms. Libongani is very educated. She ought to know that the Public Order Act in its current form does not justify police brutality. Nowhere in the Act, is it required for citizens to get permission from the state before they meet their neighbours in Chiwempala or before they go to Pick-n-Pay to buy half loaves of bread.

A police chief who was allegedly so reckless with the lives of Zambians in Zambia cannot possibly have the legitimacy to represent Zambians to Canada. The United Party for National Development (UPND) issued a statement on Ms. Libongani’s redeployment to Canada. Spokesman Kakoma hoped that Ms. Libongani would now learn from an advanced democracy like Canada how to respect liberties. I do differ with the UPND’s take on Libongani. Ms. Libongani cannot learn in Canada what she failed to learn in Zambia. UPND needs to be consistent in condemning brutality without acceding to President Lungu’s actions of passing the buck onto Canada for unrepentant suppressants of constitutional liberties.

There is nothing that Ms. Libongani will bring to Zambians who live in Canada. She cannot build or inspire confidence in the Zambians who study and work there. I do not in any way speak for all Zambians in Canada, but the thought that a police chief with a record of such grievous brutality will come to Canada should be a concern.

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Trigger happy?

Some are saying that Ms. Libongani was simply following orders in her brutality. If we are to believe that nonsense, then we must be all the more concerned. As an ambassador, she would still be getting orders. If she was not able to say no to illegal orders when she was police chief how would she be able to say no to illegal orders when she has diplomatic immunity in Canada? If she abused the Public Order Act in Zambia, what assurances are there that she will not abuse the law when she is in Canada? While I agree that President Lungu is responsible for all police brutality, he is by no means the only one responsible. Those who have control over state issued machine guns, bullets and bombs have personal responsibility for their conduct. Police officers cannot hide behind the shield of politicians to escape personal responsibility for their brutality. Those who wield guns, are personally responsible for each bullet that spurts from their AK 47s.

I suggest that President Lungu promotes Ms. Musata Kaunda Banda to full ambassador in Ottawa. That will save Zambia a lot of kwachas. Alternatively, Lungu could transfer the diplomat in Nairobi to Ottawa. She can fit in very well as she speaks French and her record at the police was superb. She is evidence that a lady can hold a huge gun but still respect constitutional liberties. Why not bring Muntemba to Canada, and then send Libongani to Zimbabwe? President Mugabe can throw a welcome bash for her.

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Suggested citation: Munshya E. (2015). I Object: Why Ms. Libongani should not come to Canada as Zambia’s High Commissioner. (www.eliasmunshya.org). Elias Munshya Blog (11 December 2015)

 

On ZIALE: Questions, concerns and the way forward

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

When the Zambia Institute of Advanced Legal Education (ZIALE) released its results two weeks ago, I expressed my concern at the low passing rate. I am not alone in this concern. Several citizens of this great nation are expressing similar concerns: the low passing rate at ZIALE does not make sense. In the last sitting it was a paltry 18 students out of a possible 206 that passed the bar admission course. This represents about 9% pass rate and a failure rate of 91%. I have been asked some questions. I would like to answer them in turn.

  1. Do you want ZIALE to pass all of the students? It is not practically desirable for ZIALE to pass all of its students. But a failure rate of 91% does not make sense either. ZIALE does not have to decide between passing everybody and failing everyone. It has the duty to be fair in its teaching methodologies and expectations. Failing 90 out of every 100 students does not make sense.
  2. What impact if any, does the low calibre of students play in the results at ZIALE? This is perhaps the grand excuse ZIALE is using to justify its high failure rate: student calibre. I agree that some law graduates are of low calibre. But student calibre alone is inadequate to explain a 90% failure rate! ZIALE might be biased against the proliferation of private universities which seem to give law degrees to anyone with a pulse. But ZIALE cannot do indirectly what it cannot do directly. It cannot retaliate against private universities by making it impossible for private university law graduates to pass ZIALE. ZIALE has the duty to provide fair training and education to those students it accepts in its ranks. Some law graduates do not know how to spell or string a sentence together, I do get that. But that would still not explain how 90% of ZIALE students fail.
  3. Do you want ZIALE to lower standards? ZIALE can raise its passing rate and still uphold high professional standards. It is a false choice, to think that if more people pass at ZIALE then legal standards will be lowered. In fact, a high failing rate could be symptomatic of low standards rather than high standards. ZIALE cannot uphold high professional standards by failing nearly all of its students. Let me hasten to mention one more thing. It is not a sign of progress that 51 years after independence we only have 1,500 lawyers in a population of 15 million. Limiting the number of lawyers in a country that needs more lawyers is ridiculous.
  4. How can you criticise ZIALE when you have never been a student there? We daily criticise President Lungu, and yet 99.99% of us have never been president before. You do not need to be part of a public body in order to criticise that public body. As an ordinary citizen of our republic, I have the right and responsibility to hold public bodies to account. Those public bodies include statutory creatures such as ZIALE and the Law Association of Zambia (LAZ). Public bodies are not above the law, common sense or fairness. Public bodies are not beyond criticism. Zambians question the president and the parliament daily, why should ZIALE believe that it cannot be questioned?
  5. Why are you more concerned about lawyers and not medical doctors? It is true that in Zambia, there is a shortage of both medical doctors and lawyers. In fact, Zambia faces a deficit in nearly all professions. I leave the issue of doctor shortage to those who are eminently qualified to tackle the issue than I am. As a legal professional myself, lawyer shortage in Zambia might be more visible to me than other professions. Interestingly though, it appears like the University of Zambia School of Medicine graduates more doctors than does ZIALE. More graduates of the Schools of Medicine actually get the licence to practice medicine than do ZIALE students. The shortage of doctors in Zambia has nothing to do with failure rates at UNZA, but has everything to do with graduates leaving for greener pastures. ZIALE on the other hand just does not pass enough lawyers. If Zambia faces a shortage of professionals it should never be because our schools are not passing enough professions, as is the case with ZIALE.
  6. What do you have to say about other ZIALE programs? Ironically, ZIALE records almost 100% pass rate in the other professional courses it provides. Statutory bodies such as National Pension Scheme Authority (NAPSA) have the authority to prosecute those who do not comply with the NAPSA Act. NAPSA sends its prosecutors to ZIALE for training. Almost all of the prosecutors sent to ZIALE by NAPSA do pass the ZIALE prosecutor’s exams. What is true for NAPSA is also true for other bodies such as ZESCO, ECZ and other bodies. There can only be one explanation for the discrepancy in the pass rates between the bar exam and the other programs provided by ZIALE: when NAPSA sends its prosecutors to ZIALE, it makes it very clear to ZIALE, that the students need to be taught and trained and not tricked and trimmed.
  7. Would you consider enrolling at ZIALE? This question is brewed within the “nchekelako” culture. A culture that seeks to corrupt all those that criticise public bodies. The reason why I am dramatizing ZIALE is not so that I can benefit from it, but rather so that ZIALE serves the public good of Zambians. It is not for me, but for our people. I am grateful for the bar admission process I am currently undergoing in the jurisdiction of Alberta. It is stringent, stressful but quite fulfilling. But my passion still remains for many of our people in Zambia who need legal representation. Currently, the entire provinces of Luapula, Northern, Eastern, Muchinga, and Western provinces do not have a single private lawyer operating there. This is unacceptable. ZIALE plays a huge role in determining who gets to have the certificate to practice. It must be held accountable.
  8. What is the way forward? The legal profession is by nature quite arrogant, egoistic and ironically, very faithful to tradition. Lawyers do not like to change and they never enjoy change. The legal profession subsists on stare decisis (Do what Lord Diplock said in 1960). I do not believe change in Zambia should be left in the hands of lawyers alone. Any changes at ZIALE can only be effected by political and legislative action. Our parliamentarians must be stern on ZIALE so that it effects the changes needed. If ZIALE does not change, our parliament can remove its monopoly and perhaps create several provincial bodies that would train lawyers. I would be very reluctant myself, to propose this as a solution, but if our profession does not change, then politicians will have to intervene. But we have a choice to make to keep the integrity of a self-governing profession.

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Suggested citation: Munshya, E. (2015) On ZIALE: Questions, concerns and the way forward. Elias Munshya Blog (www.eliasmunshya.org) (November 25, 2015)