Hon. Kelvin Sampa’s Law Societies Bill (2017): The Good, The Bad and the Ugly

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

I commend parliament for considering changes to the Law Association of Zambia Act (LAZ Act). I agree that the LAZ Act needed reform to make it more responsive to present realities. However, the proposed Law Societies of Zambia Bill that is being considered to replace the LAZ Act requires further work for it to bring about real change.

Any Reforms Must Have Input From LAZ

The new bill seems to have had no input from the current Law Association of Zambia (LAZ) Council or its members. While I have had, some reservations regarding some seemingly partisan positions that the current LAZ Council and leadership have taken, I still believe that LAZ must be involved in any discussions involving its future and the future of legal practice in Zambia. I urge the parliamentarian Hon. Kelvin Sampa to contact the LAZ president and council and try to engage them in the discussions to repeal the LAZ Act and in any further deliberations to pass the new bill. I do not believe that the path taken by our politicians is a wise one now. LAZ’s perceived partisanship considered, it nevertheless, enjoys the statutory responsibility to be consulted, particularly, on matters that deal with the regulation of the legal profession in Zambia.

The Bill Must Address Inadequacies with the LAZ Act

The new Bill does not quite address what is inadequate with the current LAZ Act. What the new bill is proposing to do is just to have two or three or four more so called “law societies” without a fundamental change to the basic template in the way lawyers associate and get regulated. We do not need to create more LAZs to resolve the current problems we have with one LAZ. You cannot cure a problem you have with one association, by creating many more associations. The solution should, first and foremost, be such that it creates some needed reform and change to the template, rather than just duplicate and multiply the current LAZ template.

Reforms Should Split Regulation from Fraternity

The problem with the current LAZ Act concerns its dual role as both a regulator and a fraternal association of lawyers. I propose that the first act of reforming LAZ should be aimed at delinking regulation from fraternity. The Law Association of Zambia must be split into two: a regulator and a fraternal representative association. If the government still wants to liberalise the formation of fraternal associations, it can do so while maintaining a single non-partisan and apolitical regulator.

The regulator I suggest can be called the Law Society of Zambia (LSZ) (not to be mistaken with Hon Sampa’s bill, nevertheless). This regulator will concern itself with self-regulation of the legal profession. It will not have a broader mandate of political advocacy, but will be strictly a body that looks at standards, licensing, education, discipline and other general regulatory matters of lawyers. The LSZ will not have the mandate to provide political advocacy. The LSZ can easily be created from the current LAZ committees such as the legal practitioner’s committee and the disciplinary committee. These two committees and their current members can be transformed into the LSZ and begin the duty of a non-political role to regulate how lawyers are trained, retained, disciplined and structured. It can have its own rules adapted from the regulatory regime governing under the current LAZ Act, and the committees that deal with education, discipline, and licencing.

After the regulatory role is taken over by the LSZ, the current Law Association of Zambia can then be transformed into a voluntary representative body of lawyers with unrestricted powers and duties to represent its members and participate in advocacy. If need be, the government can liberalise this fraternity by encouraging the formation of various law associations, as envisaged by Hon Kelvin Sampa’s Law Societies Bill. The law associations will be voluntary, fraternal, and can do political and general advocacy. The associations can also function within the framework of civil society.

If our members of parliament do not agree with me on the above-noted points, and insist on proceeding with the current Law Societies Bill, 2017, I kindly request that they pay attention to the following matters of huge concern:

First, the Bill in its current form should require concurrent changes to other legislation such as the Legal Practitioners Act (LPA). The parent legislation that regulates lawyers in Zambia is the LPA and it seems that a bulk of its powers are delegated to the Law Association of Zambia, and in some respects to the Zambia Institute of Advanced Legal Education (ZIALE). There is need to look at allied institutions when considering the Bill.

Elias Munshya New

E. Munshya

Second, on membership to the law societies, the Bill at clause 7 opens membership to “any person who is ordinarily resident in Zambia.” This in my opinion discriminates against Zambian lawyers spread all around the world who would like to be members of the Zambian bar. This provision appears to have been lifted from the current LAZ legal regime, a regime that was created way before the introduction of dual nationality in our Constitution. With dual nationality, it is in the best interest of our nation to have Zambian lawyers in the diaspora satisfy the residence criteria to be members of the Zambian bar. The world has now become a global village and Zambian professionals in the diaspora provide a valuable leverage for the growth and development of Zambia. We propose that clause 7 of the Bill recognises that membership will be open to any citizen of Zambia and any person who is ordinarily resident in Zambia.

 

Third, clause 15 of the Bill requires twenty years at the bar for one to be elected vice-president or president of the law society. This requirement is way too high. For a country with only just over 1,000 lawyers, it is a bar too high to set eligibility for presidency at twenty years. Zambia currently adds about 200 lawyers per decade. In the fifty years of our independence we only have slightly over a 1000 lawyers, putting a twenty-year requirement further diminishes the talent pool from which to draw leaders of the law societies. Since the positions of president and vice-president are electable positions, we propose that the twenty-year requirement be removed altogether. It is unnecessary.

Fourth, I cannot avoid it, but notice here that the creation of multiple law societies will not actually help protect the public interest. The Bill suggests that each law society will have its own licensing committee, disciplinary committee, legal practitioner’s committee etc. This duplication of roles cannot protect the public and neither is it in public interest. I, therefore, return to the proposal I made in the first part of this article, to create a single apolitical regulator while liberalising association, fraternity, and advocacy. In my opinion, having a single regulator while allowing the formation of several other fraternal law associations will protect the public, while ensuring that lawyers can freely participate in society as active members of civil society.


Suggested Citation: Munshya, E (2017). Hon. Kelvin Sampa’s Law Societies Bill (2017): The Good, The Bad and the Ugly. Elias Munshya Blog. (www.eliasmunshya.org). March 24, 2017.

Note: This article was also published in Zambia’s leading independent newspaper, the Zambia Daily Nation on March 24, 2017.

Elias Munshya practices in Calgary, Alberta with interest in civil litigation, human rights, and regulatory law. In addition to degrees in theology and counseling psychology, Elias holds law degrees from England, Wales, and Chicago, USA.

 

Statutory Recognition of Customary Marriages In Zambia: Reforming colonial marriage laws

By Elias Munshya, BA, MA, MA, LLM, MBA, M.DIV.

It is a little more complex than I explain in this article. But let me try to be as clear as I can. The current laws in Zambia regarding marriage and divorce are deeply steeped in colonialism and need urgent reform. Basically, during colonialism, Britain created roughly two categories of marriage –under statutory law (and the church) and marriages contracted under customary law (regarded as inferior, for the natives). Statutory marriages include those contracted in churches and at places like civic centres. Customary marriages are contracted using Zambian customary law that lacks statutory protection. For statutory marriages, the High Court has jurisdiction when it comes to dissolution (or divorce). Customary marriages fall under the Local Court Act, and can be dissolved by the Local Courts. Bizarrely, payment of dowry is an integral part of customary marriages.

The distinction between these two types of marriages has outlived its usefulness. In the modern legal regime, it would be a good idea to collapse the distinctions and give statutory recognition to customary marriages. This is not really to suggest that we should not have customary marriages, but rather that all marriages, including customary ones should be given equal statutory recognition. Zambia’s marriage and customary Acts should be reformed so as to bring customary marriages within their ambit. The model in this regard that I would suggest is the Kenyan model. There was a huge uproar when Kenya consolidated its patchwork of marriage laws into a more responsive integrated legal regime. The uproar particularly came from some circles who chose to completely misunderstand what was obtaining in Kenya. Giving customary marriages statutory recognition (like Kenyans did) does not mean that marriages contracted in the church will now be open to polygamy. Far from it. Kenyan laws did not make Christian marriages less Christian, it only made customary marriages more legal (as in, be in the statutory books). Simply put: a man was no more likely to marry more wives after the new marriage law than before. All the law did was to bring all marriages including customarily polygamous ones under the cover of statute! This is what we need to do Zambia.

How would this work practically? First, the judiciary and particularly the ministry of justice should work to enhance the capacity of local courts. Over 90% of civil and family disputes in Zambia are resolved by the Zambian local courts and yet the Zambian local courts are the least funded of all courts in Zambia. By enhancing capacity of local courts systems and the local court justices, they can be well equipped to deal with customary marriages, even if customary marriages were to be given statutory recognition.

Second, the High Court should be given jurisdiction to hear customary marriage divorce application if a marriage meets certain conditions: duration of over 20 years and the property contemplating division is over K500,000. The numbers and figures I have suggested here could be raised even higher so that the High Courts are not swamped. But reasonably, there is no reason why the High Court should be precluded from hearing matters that concern nearly 90% of Zambians. We should abandon the colonial legacy that condemned customary law as somewhat unworthy and inferior for the best jurists.

We are likely to face the question of subject matter jurisdiction. If all marriages fall under statutory regimes, will the Local Court still have jurisdiction over dissolution of customary marriages? I do not think that there is any reason why the Local Court should not continue to have jurisdiction over dissolution of customary marriages. Imposing statutory protection upon customary marriages will not make dissolution of such marriages any more complicated than they currently are. The Local Court justices and some chiefs will continue to have the power to hear and determine questions about such marriages.

Third, under the current practice, dissolution of customary marriages unfairly disadvantages women because of  an outdated colonial analysis that is foreign to a modern Zambia. It is apparent that at dissolution of marriages, the High Court applies a much fairer equitable standard than do local courts. Local Courts probably want to do what is fair, reasonable and equitable but they cannot achieve this result because they are limited by customary practices in the way they can analyse spousal property and its division after dissolution. It is unacceptable that in this day and age, a woman should be denied her share of the matrimonial property simply because local courts cannot grant her a fairer share due to customary practices.

Fourth, Zambia must reform its attitude towards cohabitation. While as a Christian nation, we do have very strong views about the big F (– fornication), the current attitudes towards cohabitation unfairly disadvantage women. Mostly, it is women that get the raw deal out of the current cohabitation attitudes. There is an imbalance in power. Local courts are reluctant to award any kind of support to women upon dissolution of a cohabitation. Under statutory law, it is equally worse, no recognition whatsoever for cohabitation. My proposal is that we develop the concept of legal recognition where a cohabiting couple is deemed married for the purposes of property division after the end of that cohabitation. If people have lived together for five years, for example, I would suggest that such a couple be given some form of equitable recognition if their relationship ends. Doing this would make it much fairer for women who get the blunt of our current unreasonable attitudes.

There are several ways we could think of changing marriage laws in Zambia. I am just hoping that this article can get us talking about how colonialism and its laws continue to disadvantage the weakest among us.

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Suggested Citation:

Munshya, E. (2017). Statutory Recognition of Customary Marriages In Zambia: Reforming colonial marriage laws. Elias Munshya Blog. http://www.eliasmunshya.org (March 18, 2017)

 

 

 

Liberty In Sorrow: Zambia should investigate Iglesia Ni Cristo stampede but unban the church

 

By Elias Munshya, BA, LLB, MA, MA, LLM, MBA, MDIV.

March 6, 2017 was a sad day for Zambia. Eight souls perished in a stampede as they gathered to receive food handouts from a church organisation known as Iglesia Ni Cristo (INC). This church organisation was first registered in the Philippines in about 1914 and from humble beginnings and ridicule it has grown in its outreach efforts around the world. One such efforts in Zambia led to it organising an event where it promised to distribute food hampers to the poor of Lusaka. With this promise, thousands turned out. Perhaps due to poor organisation and lack of good crowd control, 8 of our people unfortunately died. May the souls of our departed rest in eternal peace.

With tears in our eyes, and a strong sense of loss, the government of the republic of Zambia (GRZ) reacted swiftly. Government ministers addressed the nation. They explained what had happened and assured the nation that they are doing thorough investigations. They also expressed profound sorrow from our head of state. Lungu mourned with us. Tyranny, however, must be confronted regardless of where we are at in our heavy hearts. In moments of disappointment and pain, we must remain vigilant to safeguard the most sacred of our liberties. Nothing erodes liberty like giving in and giving up in the face of fear. Mourning we needed to mourn and investigations we needed to explore, the state, however, in addition to other measures decided to ban the Iglesia Ni Cristo. And this honour apparently fell in the hands of the Minister of Religious Affairs and National Guidance, Rev. Godfridah Sumaili. She addressed the nation and announced the ban of the Church of Christ (Iglesia Ni Cristo). It is my opinion that the ban was excessive, unnecessary and must be vigilantly rejected. For the following reasons.

First, the primary role of the church such as INC is religious worship. INC has several members in Zambia. They mostly meet in smaller houses of worship and have a very reasonable number in attendance each week. INC, however, organises a few large meetings such as crusades. It so happens that the church perhaps punched above its weight and underestimated how many people would show up to receive free food. What Rev. Sumaili perhaps needed to do was to ban the church from having large gatherings, rather than banning it from meeting at all. Banning the church from worship disproportionately violates their freedom of worship. It does not make sense to ban a church from worshipping for contravening the law that applies to something they did outside of worship. If for example there is a mine accident, it is reasonable for the state to intervene and ban a company from mining until safety issues are resolved. That is perhaps what was needed here – to ban the church from holding large gatherings while leaving its freedom to worship intact. The problem was not worship, the problem was the church holding a large gathering with little to no crowd control.

Second, the ban sends a chill down the spine of all religious denominations in Zambia. The Ministry of Religion and National Guidance must have no role in banning churches. It does not register them and therefore it has no business banning institutions that it does not register or regulate. Consequently, the government of the republic of Zambia does not regulate Zambians’ exercise of the freedom of worship. If we let Rev. Sumaili’s ban in place, it will set a very bad precedent where she might have the liberty now to begin banning churches indiscriminately. Political power need not be unreasonably trusted. Rev. Sumaili could be a good person, but her exercise of state power must be tempered by reasonableness. Erosion of liberties does not happen suddenly. It always starts very subtly. It is up to Zambians to be vigilant and push back against the state’s interference in religious liberties.

Third, the Ministry of Religion and National Guidance (MRNG) is a new ministry trying to find its raison d’etre. We must not let that be the banning of churches for reasons completely unrelated to Zambians’ freedom of worship. The dread we must all have with a ministry that seems to be wanting to regulate how Zambians worship is the impact that such a ministry may have on constitutional liberties. Zambia is a Christian nation. But the Christian nation declaration confers no reliable or enforceable rights on Christians as opposed to others. The Zambian state lacks the competence to arbitrate between competing religious doctrines. The MRNG should know that it has no role and no business whatsoever in guiding how Zambians will choose to worship or not worship. If at all there is any misunderstanding as to the role of the MRNG and its minister, let it be known, that Zambians will not sit idly while the state plays with their liberties like ping-pong.

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E. Munshya, BA, LLB, MA, MA, LLM, MBA, MDIV

Fourth, I am aware that Zambian government ministers are mostly people of conscience and the constitution accords them the liberty to worship. But the individual ministers’ religion should have no bearing whatsoever in how they promulgate public policy, particularly as far as churches and religion are concerned. The Zambian state has no business regulating how Zambians choose to exercise their constitutional liberty to worship. A few years ago, when around Easter police and immigration officers raided churches to hunt for illegal immigrants, I condemned such activities because they disproportionately targeted religious denominations. The state must not be sending guns to disrupt people gathered to worship God. The Zambian constitution’s religious liberty is afforded to both legal residents and illegal residents. The state should not be barging into churches to arrest worshippers who do not have immigration papers. If the state wants to arrest illegals, let it do so anywhere else and not in church. Religious freedom is too precious a liberty to sacrifice at the hand of political convenience.

I urge Hon. Sumaili to reverse her ban on the Iglesia Ni Cristo. The ban makes no sense and it is not rationally connected to her trying to prevent another stampede from happening. Stopping INC from worship limits the church members’ freedom of worship. If it is the stampede the state wants to prevent, it can take measures aimed at reducing those stampedes. Banning the church out-rightly is disproportionate and sets a very bad precedent. And we must not allow that to happen. Not in Zambia.

Lungowe and Others v. KCM: an access to justice analysis in Zambia

E. Munshya, LLM, MBA, MDIV.

Chingola resident Dominic Liswaniso Lungowe and several other colleagues of his have sued both Konkola Copper Mines Plc (KCM) and Vedanta Resources Plc in the High Court of Justice, Queen’s Bench Division, Technology and Construction Court. This court’s equivalency in Zambia is the High Court of Zambia. For obvious reasons, both KCM and Vedanta objected to the plaintiffs’ decision to sue in London instead of Lusaka, Kitwe or Ndola high courts. KCM and Vedanta made an application before the London High Court to dismiss the action before it could even be heard. They hired lawyers in London and invited legal practitioners in Zambia to testify in London to show that the plaintiffs could in fact receive just as good a justice in Zambia as in London. The plaintiffs on the other hand, through their solicitors Leigh Day, argued that they could not receive justice in Zambia and the best venue for this suit was London. The plaintiffs too assembled their witnesses from Zambia to testify in London about how difficult it would be for them to access justice in Zambia. One of their star witnesses about the horrible legal situation in Zambia was Mr. Musa Mwenye SC, Zambia’s former attorney general and former president of the Law Association of Zambia.

Mr. Lungowe’s complaint is horrifying and yet his legal problem modest to understand. He is claiming that KCM and Vedanta poisoned his water and polluted the environment in Chingola. In May 2016, Mr. Justice Coulson issued his ruling on this preliminary matter. His decision, I think, has not received enough attention in Zambia. It must receive fair comment and analysis to help our people and our country understand how we can improve on the delivery of justice in Zambia. I am very encouraged by the efforts being made by Hon. Given Lubinda, the minister of justice, about reforms that Zambia must implement to increase access to justice. In fact, the Law Association of Zambia itself has made “access to justice” a very important issue in its strategic plan and vision. LAZ’s first female president has pointed out severally the importance of access to justice. The Lungowe decision will help us see just how we can do that. The full decision can be found at the following website http://www.bailii.org/ew/cases/EWHC/TCC/2016/975.html.

First, access to justice in Zambia can be impended by the Zambian bar’s decision to ban Contingency Fee Agreements (CFA). In Zambia, a person who needs a lawyer must either pay for one or find someone who can do it pro-bono. Zambia does not allow special arrangements like CFAs where a lawyer gets paid from a settlement or judgment after winning the case. Particularly, in injury and pollution cases such as Lungowe’s, having CFAs in place would make it easier for claimants to seek legal advice from those lawyers who are willing to put in their time now for a payment to come later. It is agreeable that CFAs cannot apply to all kinds of legal suits, but can certainly apply to some.

A claimant who does not have enough money to pay for a case upfront can still have access to justice on this basis. Leigh Day, the solicitor firm representing Lungowe and others is doing so on a contingency fee agreement basis. Through this way, it has made it easier for Mr. Lungowe to have the best legal representation without the need to advance huge sums of Kwachas. To maximize access to justice in Zambia, both the Law Association of Zambia Act and the Legal Practitioners Act must be reformed to allow creative ways of paying for justice (read, lawyers).

Second, in keeping with common knowledge, lawyers cost a lot of money. In Alberta, there is saying among lawyers that not even lawyers can afford to hire themselves. As can be seen from what just happened this week in Lusaka when the Law Association of Zambia (LAZ) decided to hire a lawyer (Mr. Musa Mwenye, SC) to represent accused lawyer Nchito, even the most prolific of legal minds in Zambia, still need a little help and assistance to afford a lawyer. While this challenge is real in Zambia and elsewhere, allowing CFAs particularly in civil litigation will help make it easier for people to access justice. May be by the message of fate, the same Mr. Mwenye who told the London court that Lungowe will not receive justice in Zambia, is the same one LAZ has hired to represent the accused Mr. Nchito in the Lusaka magistrate court.

Third, Mr. Justice Coulson confronted the big elephant in the room, or is it, in the corners of Zambia. This is a complete quote from Coulson, J.:

“…the legal system in Zambia is not well developed: indeed, in 2012 Zambia was the subject of a report by the Bureau for Institutional Reform and Democracy which highlighted the dearth of lawyers in Zambia, and the consequences for its citizens” (para. 176).

Elias Munshya NewLet me paraphrase – the small number of legal practitioners in Zambia, gives the nation an undeveloped legal system and this has dire access to justice consequences for its citizens, like Lungowe, and yes like lawyer Nchito too. Zambian citizens do not have adequate access to justice because Zambia has too few lawyers! We have been saying this for a very long time and absolutely nothing seems to change – we are still at about 1,000 active lawyers. The Chief Justice always talks about access to justice, and so does the minister of justice, and so does the LAZ president, and so does Mr. Likando Kalaluka SC, and so does Bo Edgar Lungu, and so did Bo Justice Coulson. But nothing changes because talking about access to justice is meaningless unless you make real changes. Talk is cheap. Zambia cannot continue treading this path; it needs to increase the supply of lawyers. Fifty years after independence, a judge from a former colonial master should have no opportunity to say what Coulson said. But he said what he said because the lack of lawyers in Zambia doesn’t make Zambia sophisticated, it makes Zambia appear legally undeveloped and disorganized. Zambians need easier access to justice and it is impossible to have access in a country where we have 1 lawyer for every 20,000 to 25,000 people. Chingola where Mr. Lungowe and his friends live is a town with about 200,000 people and, as justice Coulson observed, 4 lawyers.

Need I say more?

I am not resting my case.

Why the Zambia Police Command should reverse its ban on foreign spouses

E. Munshya, LLM, MBA, MDIV.

It is rather shocking, and very surprising that the Zambia Police command has now banned its police personnel from marrying foreigners on the pretext that these foreign spouses could end up being foreign spies. Additionally, the command is asking police men and women who are married to foreigners to inform the Inspector General of Police as soon as possible.

When you come to think of it, which foreign spouses is the Zambia Police command banning? Is the police command concerned that our cousins, the Malawian men, will cross into Chadiza and seduce our police women and become spies? Or maybe the police command has a reason to fear. Malawians want to come and spy on our bumper harvest so that they can mysteriously send army worms to destroy our prosperity. I see. Or maybe after they spy on our harvest they will then send emissaries to their relatives at State House to beg for thousands of metric tonnes of maize which they will then steal causing the maize gate scandal in Lilongwe.

Or is it ba bululu shesu ba Kasai that the police command is concerned about? How can a police constable marrying ba Kasai be detrimental to Zambia’s wider security interests? Or perhaps, unknown to us, Senegal or may be Tanzania is sending killer women to seduce and marry Zambian police men and then spy on our emeralds. With due respect to the police command, banning foreign spouses for police constables will not make Zambians any much safer. And in fact, we stretch the law too broadly if we bring police constables under the list of those officers who prima facie hold state secrets. As a matter of course, holding state secrets is not in the police constable’s routine job description. And if they came across state secrets (which is rare), constables are required to keep the secrets as required by the same law binding on President Lungu as well as the least among us.

Not everyone who holds a government issued AK-47 holds government or state secrets. Confidential information does not necessarily amount to state secrets. The nature of public and community policing brings into focus confidential information and some operational secrets, but these are not necessarily state secrets.

Any functioning nation does have some state secrets. In our democracy, our executive branch of government supervises the security wings who hold guns and bombs that our neighbours or foreign actors should not know about. Additionally, in the security interest of this nation, our intelligence and other security wings carry out clandestine activities to keep Zambian borders safe. Our intel community also collaborates with friendly nations to ensure that we maintain the peace we need. There is no arguing against that. Our state must have and keep its secrets. On the other hand, I do not see a rational connection between banning police from marrying foreign spouses and keeping our nation safe. Police constables spread across our nation, do not hold state secrets that can be compromised by a foreign spouse. The power to arrest criminals is not a state secret. The Police Command is extending its reach too widely by bringing every sworn police officer under the cover of custodians of state secrets. While it is true that police constables can hold some confidential and operational information, it cannot be said that they hold state secrets to justify banning them from foreign marriages.

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E. Munshya

The police command spokesperson is reported to have justified this decision because married people “become one.” I do take it that we Zambians love the Bible and have read it many times. In fact, quite a good number of marriages are contracted in the church where the priests quote the Bible that says “…and the two shall become one” (Mark 10:8). This important biblical principle nevertheless is not a legally justiciable principle. Additionally, the oneness concept is a biblical principle, but it is not a practical principle. When a person gets married, they do not become the spouse. In the case of President Lungu, for example, even if Mama Esther is the spouse of President Lungu, she is not a president and she is not part of the presidency. President Lungu as head of state is privy to state secrets that he cannot share even with his spouse. The idea that policepersons should not marry foreigners because they will be sharing state secrets with foreigners makes absolutely no sense as a person sworn to keep secrets must keep secrets even from their own spouses. The duty to confidentiality is expected on many: lawyers, judges, counsellors, ministers, MPs, etc. The biblical principle of oneness does not enable professionals to share private information with spouses.  It is ridiculous to suggest that marriage, by itself provides a prima facie presumption that the spouse will know their spouses work secrets.

There are better ways to keep spies from bombarding our country. Forbidding police officers from marrying foreigners is not one of the ways to control foreign spying. If Zambia were at war, the nation can make emergency determinations about its security. Perhaps, it is at such a time that such decisions can be done about foreigners. But a blanket ban on foreign spouses in a time of peace, is overbroad and extremely confusing. There is absolutely no evidence whatsoever that foreign spouses are much more likely to be spies than local spouses. There is absolutely no evidence that restricting police to marrying Zambian spouses would make Zambia safer or that crime will reduce. The police command policy should be abandoned forthwith. It is absolutely unnecessary. Or may be it is necessary if we are just targeting our cousins the Malawians, such terrible spies!

 

When “Icishimba” Goes Rogue: Dr. Kambwili and the future of the ruling Patriotic Front (PF)

E. Munshya, LLM, MBA, M.DIV.

Even if President Lungu were to turn water into wine, there is just no way the Zambezi provinces (Northwestern, Barotse and Southern) would vote for him and his ruling Patriotic Front. Not now and not in 2021. Without the Zambezi provinces, President Lungu and the Patriotic Front remain hugely dependent on at least two big constituencies: Bemba provinces and the urban areas (Lusaka and Copperbelt). If there is any indication of the lost steam of the Patriotic Front, it should be seen with how it will perform and is performing in urban areas and in Bemba provinces. More than ever before, the Patriotic Front faces a serious threat within itself because of shifting support that is beginning to take place in urban areas and in Bemba speaking areas.

It is this background that brings the renegade Chishimba Kambwili into focus. Corruption charges aside, Dr. Kambwili matters for the PF not because he is a mover and a shaker on his own, but rather that his political treatment or maltreatment within the PF comes at a time when the PF needs to present a more unified stance to stave off any challenge to its Bemba and urban hegemony. Dr. Kambwili’s current status in the PF is the symptom rather than the disease that will seriously challenge the viability of the Patriotic Front. Here is why.

Urban areas are becoming increasingly discontented with the Patriotic Front. The people of Lusaka are close enough to see how many times the President is flying around the world globetrotting at tax-payer expense. The people of the Copperbelt have no jobs and employments are just nowhere to be found. With this urban dissatisfaction, President Lungu’s firewall is very likely to collapse in the next few years, if not months. The persecution or the so called disciplining of Chishimba Kambwili coincides with this urban discontentment unfortunately, and if it continues, Kambwili could rebrand himself as the champion of urbanites on the line of the Michael Sata populism. If that happened, President Lungu will face a very serious test of his leadership and his status.

That President Lungu survived without any serious difficulties in Bemba provinces came as a huge surprise in 2016. The strength of the PF, however, will be greatly challenged going forward. The Patriotic Front’s treatment of its Bemba-speaking politicians is concerning in several circles. Added to the list of sidelined influential Bemba-speaking politicians will be Dr. Kambwili. His sidelining will continue feeding this perception that President Lungu does not treat influential Bemba politicians fairly. Beginning from GBM, to Kambwili, to Emmanuel Mwamba, there is a lot to argue that President Lungu will not take kindly to influential Bemba politicians. Of course, he has tried to embrace less influential ones like Defence Minister Chama and perhaps Father Frank Bwalya. But beyond that, there is some perception out there, that the Patriotic Front’s lack of patriotism to its Bemba strongholds will not end very well and Chishimba Kambwili becomes just the next casualty.

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Dr. Chishimba Kambwili

From history, politicians like Dr. Kambwili who have had a fallout with a president do not last long in the ruling party. So, it is almost a foregone conclusion that Dr. Kambwili will likely be suspended or eventually expelled from the PF. However, if he taps into urban populism, he will be chipping away support not from the United Party for National Development (UPND), but rather from ruling Patriotic Front. Regardless, of what or where Dr. Kambwili decides to make his next political home, the loser will be the Patriotic Front and President Lungu. If he goes with the UPND, he could be the one that finally grants the UPND an urban seat in parliament. If on the other hand he decides to form a political party, that party will most likely be very competitive in the urban areas among the disgruntled forces of the ruling Patriotic Front. With little to no support in the Zambezi provinces and a shaking urban constituency, President Lungu will have depend heavily upon the Bemba-speaking provinces, another constituency that is not guaranteed to the Patriotic Front, come 2021.

Now that President Lungu is somewhat confident that the Constitution allows him to stand in 2021, there will be several in the ruling PF that will fight him on it. Unfortunately, President Lungu has very little to work with to maintain the little support from urban areas and his Bemba stronghold. With the current political doldrums facing Dr. Kambwili, this tempestuous honorary doctor could as well be the embodiment of urban and Bemba discontentment that finally topples the Patriotic Front’s hegemony. Or is it too early to tell?

 

Review of the Zambian Supreme Court’s Decision in Folayinka Esan v Attorney General (2016)

By E. Munshya, LLM, MBA, MDIV.

The Zambian state daily exercises power over the population in various ways. However, the Zambian state exercises this power through designated officers tasked with the duty to perform and exercise this power. The exercise of this power generally belongs to a branch of the law known as administrative law. The power that administrative bodies and individuals use can be derived from several sources such as the common law, statute or the constitution. When evaluating whether an administrative body or officer has the power to do an act, it is important to check with the enabling statute to see whether the statute does indeed grant the power to that administrative body or officer.

Zambian government ministers do exercise administrative powers. This power is mostly derived from statute and some of it comes from the common law. Most statutes giving the ministers administrative law powers are framed quite generally. For example, the minister of home affairs has the power to make an assessment that a particular foreigner in Zambia has become a danger to Zambia and must be removed. This power, known as a “discretion”, is very wide such that the statute leaves it to the minister’s good judgment and prudence to determine who can be deemed as a danger. In the past, courts of law have given great deference to ministers to exercise this power. However, this assumption is now under attack, and administrative bodies including ministers are now expected to be reasonable when exercising administrative law duties such as performed by the minister of home ministers.

This is what arose in the recently concluded Supreme Court case of Esan v Attorney General (2016). Mr. Esan, a British national, had his work permit revoked and subsequently ordered deported after the minister made an assessment that he had become a danger to peace and good order in Zambia. It was in December 2012 when Mr. Esan upon his return from an overseas trip got detained at the airport in Lusaka and got transported to Ndola where he was ordered deported as he had allegedly become a danger to Zambia.

Mr. Esan sought judicial review of the minister’s action and at first instance, the high court ruled against him declaring that Section 34 of the Immigration and Deportation Act granted the minister of home affairs unfettered discretion to declare an alien dangerous to peace and good order in Zambia and deport such aliens.

Mr. Esan appealed against the high court ruling and on December 9, 2016, the Supreme Court issued its ruling. This ruling, coming from Chief Justice I.C. Mambilima, Judge R.M.C. Kaoma and Judge M. Musonda, is monumental for several reasons.

  1. It recognises within the ambit of Zambian democracy that, “courts ought to be conscious of emerging trends towards more open and transparent government that promote the rule of law, human rights and curbs arbitrariness” (p.25). It is my hope that this statement is being read by all judges in Zambia and being given the serious consideration it deserves.
  2. Esan shows that judges of the Zambian courts are willing to stand up to the potential tyranny of executive power. This looks like a great reversal from former Acting Chief Justice Lombe Chibesakunda’s court which clothed the presidency with almost infallible powers in the case of Munalula and Kajimanga v. Attorney General case. In Esan, the judges are saying that the law that seems to clothe decision makers with seemingly absolute discretion must be interpreted strictly and in ways that give effect to the democratic character of the Republic.
  3. The judges in Esan clarify the law regarding the duty that a decision maker has to give reasons for their decision. The statute does not obligate the minister to give reasons why she decides that person A should be declared persona non-grata. Nevertheless, in the “dispensation of open government”, declared Chief Justice Mambilima, “there is a growing school of thought advocating that reasons must be given for administrative decisions to show the considerations that the decision maker relied on to arrive at the decision and most importantly, to assist the affected persons and those reviewing the decision when it is challenged” (p. 31). Most importantly and crucially, “failure to give reasons for a decision amounts to a denial of justice and is, in itself, an error of law” (p.31).

Esan is in my opinion the most significant administrative law decision to have come out of the Zambian judiciary this year 2016. We look forward to the development of the law in this area. With rulings like this one, the Zambian judiciary is in good hands.

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Citation: Munshya, E. (2017). “Review of the Zambian Supreme Court’s Decision in Folayinka Esan v Attorney General (2016)”. Elias Munshya Blog. (www.eliasmunshya.org)

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