When the State Becomes a False Prophet: How Rev. Sumaili’s views threaten Zambia’s constitutionalism

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

Zambia’s minister of religious affairs and national guidance, the Honourable Reverend Godfridah Sumaili spoke with the Zambia Blog Talk Radio on Saturday, May 20, 2017. I found her sentiments in that interview to be deeply disturbing. Rev. Sumaili sounds like a very good person. However, tyranny when perpetrated by good people is very difficult to resist. Tyranny that comes in the vessels of blood is far much easier to identify and resist than the one that comes through the honourable vessels of splendour. The more splendorous the vessels of tyranny appear, the greater the duty for vigilance. Nevertheless, tyranny is tyranny regardless of which vessel it uses. For the reasons that follow, I find that the Hon. Rev. Godfridah Sumaili has fundamentally misunderstood the Zambian constitution.

Rev. Sumaili believes that the ministry of religious affairs is trying to operationalise the declaration of Zambia as a Christian nation. This is boloney from a constitutional perspective. Zambia is a Christian nation, but the declaration of Zambia as a Christian nation does not confer reliable rights on Christians. The Zambian constitution has not given Christians more constitutional rights than members of different faiths or sects. It is wrong for Rev. Sumaili to state that now the Zambian government will operationalise the declaration of Zambia as a Christian nation. Zambian Christians, particularly those of the faith of the honourable reverend (which is my faith too), need to take the time to read the whole paragraphs of the constitution. The preamble to the constitution of Zambia declares the republic to be a Christian nation. But it does not end there. It states further that “while upholding a person’s right to freedom of conscience, belief or religion” (Constitution of Zambia, 2016). Constitutionally then, Zambia is both a Christian nation AND a nation that upholds freedoms of conscience, belief or religion. Rev. Sumaili cannot as a representative of the political state pick and choose what she wants from the constitution.

September 2016 ©MBKoeth

Elias Munshya

During the interview, Rev. Sumaili’s analogies were even more problematic. She stated that just as a home has values, so should a nation. She is advancing a very dangerous paternalism that is not envisioned by the constitution of Zambia. Zambia is not a home with a father and mother ruling over children in a household. The biblical model of a home cannot be extrapolated to the Zambian state. Zambia is a republic with a constitution that assigns roles to each branch of government. Zambian citizens are responsible adults with rights and privileges afforded to them, not by custom, or the Bible, but by the constitution of the republic. What Rev. Sumaili has stated will erode constitutional liberties. Values in the home, are not the same as values that keep a democratic republic viable. You can’t stand up to your father in the home, but our constitution allows citizens to stand up to political leaders. Mr. Lungu is head of a democratic state and not an monocratic home. If Rev. Sumaili so passionately believes in home values for Zambia, perhaps she can start with trying to instill those values in members of her cabinet. She is welcome to do that, but she is not welcome to analogise the republic of Zambia as if it were a home with Mr. Lungu as the father and Mrs. Esther Lungu as the mother.

Rev. Sumaili is proposing that the Zambian churches should be regulated by the church mother bodies. This is nonsense. I appeal to all Zambians of good faith to resist this maneuver. The church mother bodies cannot regulate the practise of religion. Churches differ in doctrines. Pentecostals speak in tongues, a practice that Baptists find intolerable. Are you going to let Baptists regulate the practice of the pentecostal faith? What about Sabbath worship? Is the church mother body going to regulate who should worship on which day? Even if the government intended that churches regulate themselves, that too would be unacceptable at very basic theological level. There is no formula to religion and certainly when the state claims to have found a formula to religion it becomes a false prophet.

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Hon. Rev. Godfridah Sumaili

Asking for self-regulation of the churches is also intolerable as a matter of constitutional law. The Zambian Bill of Rights has not envisaged a situation where the fundamental freedom to worship would be subjected to regulation by the state or its administrative delegate. Zambia is not Russia where a despot can wake up one morning proclaim themselves to be a state prophet and ban the Jehovah’s Witnesses. Had the Bill of Rights envisaged government control of religion, it would have plainly said so. The fundamental right to choose one’s religion cannot be abrogated by the state. The Zambian state cannot pass laws that control how Zambians must exercise their freedom of religion. Freedoms that should pass regulatory control for them to be exercised are not freedoms at all. When the state begins to regulate how, where, when and what a person should and cannot say, tyranny begins. To be very clear: Rev. Sumaili might as well continue to dream on, but the Bill of Rights has not given her the power, nor the right to regulate or propose regulation of the freedoms of worship.

Rev. Sumaili does seem to suggest that Zambia must be led according to the Bible, but she fundamentally misunderstands the practical application of such a concept. Now this is the most misunderstood concept. Theologically, the Holy Bible is God’s Word. It is the rule of faith and personal conduct, it is not the rule of Zambia’s constitutionalism. The Holy Bible is not the constitution of Zambia and is not a source of Zambian law. Zambia is not a church, it is a republic. I hope that some leaders in Zambia would lead according to the precepts of the Bible, but the precepts of the Bible do not form part of the constitution of Zambia. The Republic of Zambia is governed according to its constitution. You cannot violate the constitution of Zambia and justify such violation by quoting from the Bible. The God of the Bible has gifted Zambians with a constitution to govern themselves. Rev. Sumaili should follow the constitution and respect it or if she is not prepared to respect the constitution must resign.

Rev. Sumaili makes no legal sense and she certainly makes no theological sense. A government minister who fundamentally misunderstands and undermines the constitutional structure of our republic is unworthy to serve the people of Zambia. I call upon her to resign.

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Citation: Munshya, E. (2017). When the State Becomes a False Prophet: How Rev. Sumaili’s views threaten Zambia’s constitutionalism. Elias Munshya Blog. (www.eliasmunshya.org). May 22, 2017.

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Resisting The Lungu Dictatorship: Drop Hichilema’s treason charge and fire Zambia Police boss Kanganja

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

Dictatorships rise not by the deliberate acts of its perpetrators, but by the silent ambivalence of its tolerators. No one truly lives and plans to become a dictator. Mobutu never planned to be one, and neither did Idi Amin Dada. These gentlemen found themselves in situations which appeared conducive to stretch their power, their authority and before they knew it, a cadre of supporters had raised a chorus of infallibility. To these choruses sang many who could not object to the little steps taken that appeared innocent and certainly legally justifiable. The duty to protect the integrity of our republic requires a complex litany of cooperation. Zambia cannot be made more democratically faithful by one person, or by one president acting alone. All the institutions of the state and non-state actors must work together. And together they must work.

Zambia faces the peril of division requiring action by all those involved. We cannot shift the blame to one person. We must all look at ourselves through the mirror and ask what we can do to diffuse the tension in our republic. In a unique way, the President of the Republic, His Excellency Edgar Lungu has a larger stake though. He holds some responsibilities that he cannot outsource to anybody. The integrity of the republic has been placed on Lungu’s shoulders and he cannot delegate this weight to anybody else. Zambians who elected Mr. Lungu should demand more from him. They should stand up together and demand that their head of state reclaims his paths and listens to the dissenting voices of some of its citizens. Clear as it may be that the president has the weight of responsibility, he carries this responsibility through others.

September 2016 ©MBKoeth

Elias Munshya  ©MBKoeth

What happened in Mongu was quite concerning on so many levels. Particularly, what the British Broadcasting Corporation (BBC) calls the “road rage” incident should be concerning to all. The president of the republic should not have been put in such a dangerous situation. Clearly, the Zambian taxpayers are forking out a lot of money to ensure that the symbol of their republic is protected and has a clear mind to think and act properly. The Zambia Police have that responsibility to keep this president safe. If the Zambia Police fail in their responsibility, it is time for the president to revamp it or do something that would help the police focus on what really is important for the sake of peace in Zambia. After Mongu, and indeed after the outcry from the public, it seems, the police may have reacted and may have desired to make up for their inefficiency in Mongu by trying to invade Mr. Hichilema’s home at midnight. To be clear, there is no justifiable reason why the Zambia Police should attack Mr. Hichilema’s home at midnight, break down his house, tear gas people, in order to arrest him for the offence which had been committed in Mongu. Had the police acted appropriately in Mongu, there would not have been this terrible unstable episode Zambia is facing right now following the midnight rage. Mr. Hichilema now faces charges of treason and we will leave it to the courts of law to deal with the merits of the issue, but even then, our republic cannot live with the instability that such an episode brings in our country.

The Zambia Police need to be told by supporters and sympathisers of the PF government that acts done in the name of the republic and in the name of the president that appear to breed instability in the republic are not tolerable. There is no reason why an arrest of a person of HH’s stature should take a battalion of armed paramilitaries. The militarisation of law enforcement does not bode well for the peaceful reputation this republic has. I therefore appeal to the President to fire the Inspector General of Police and to set the ministry of home affairs on a better footing. If the IG goes, I would also suggest that we have a new minister of home affairs as the portfolio appears too complicated and more sophisticated for Mr. Kampyongo to handle. The ministry of home affairs requires a more nuanced and more diplomatic person in charge, not a trigger-happy demagogue aiming to score political points.

With all this said, we must return to how dictatorships develop. With the weight of the republic on the shoulders of any president, sometimes people who surround these leaders sing very good melodies that corrupt the leader’s perception of what is real and what is not real. It would be failing us, if we do not point out the fact that it is the collective responsibility of all citizens to promote the rule of law. President Lungu must know that he has the support of citizens. However, he also must know that he has no support of those citizens who believe that invading a person’s home is an affront to good order and justice. There are several ways to arrest law breakers in Zambia, breaking their houses and teargassing them into submission is not one of them, unless those criminals are really building a parallel army to cause confusion in the republic. Certainly, what happened in Mongu does not look so, and the blame should fall squarely on Mr. Kanganja and perhaps Mr. Kampyongo who must be replaced forthwith so that our national security benefits from a fresher perspective.

____________________________________________________________________________________________Suggested Citation: Munshya, E. (2017). Resisting The Lungu Dictatorship: Drop Hichilema’s treason charge and fire Zambia Police boss Kanganja. Elias Munshya Blog. (www.eliasmunshya.org) (April 19, 2017).

Regulating Lawyers In Zambia: principles and practice

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

Professional regulation of lawyers must be undergirded by several principles. First, the legal profession must be self-regulating. Self-regulation in the context of lawyers means that lawyers license themselves, assess the ritual fitness of practitioners, discipline themselves and promulgate their own rules of conduct. The principle of self-regulation is very important and must always be respected. Lawyers must not be subject to the regulation of the state. Lawyers should license themselves and not give over this cardinal element over to the state. Any amendments to the Law Association of Zambia Act and the Legal Practitioners Act must respect the fact that lawyers must have the room and the fortitude to regulate themselves. It would be very sad if lawyers lost the ability to regulate themselves.

Secondly, lawyer regulation must have the public interest at heart. Lawyers in self-regulating themselves must commit themselves to respecting and upholding the public interest. The question lawyers must ask themselves is: how can we best serve the public? It is service to the public that must the cardinal and driving force behind lawyer self-regulation.

Third, lawyer regulation must take interest in all the elements that make a good, competent and ethical practitioner. Any regulation of lawyers, must also empower the regulator to regulate law schools. Under the current regime, law schools are not in any way amenable to the jurisdiction of LAZ as the regulator. I find this to be very retrogressive. It is important to empower the regulator to have jurisdiction over the quality of legal education students are receiving in law schools. Under our higher education act, Zambians can register a university and establish a law school without input from legal regulators. I think this should be corrected. The regulator must be able to provide the needed academic guidance of what programs of study are acceptable for the future practitioners. There is concern that Zambian law schools are producing sub-standard law graduates. In some cases, LLB graduates of some Zambian law schools cannot string a sensible sentence together! That is very sad and needs urgent improvement. Several jurisdictions have gone on to require that the qualifying law degree be a second degree. Most developed common law jurisdictions such as the US, Canada and Australia now almost require that the qualifying law degree be a second degree. In Africa, there has been chatter that the Nigerian Bar Association would be requiring the qualifying law degree to be a second degree. I have no doubt that making the qualifying law degree be a second degree would help graduate more academically astute LLB holders.

Fourth, the regulator of lawyers must have as its primary role the regulation of lawyers. What I mean by this is that the regulator must concentrate on standards, competence, discipline, licencing, and training of lawyers more than anything else. The Law Association of Zambia Act has a serious incongruity in this regard. It seems like in 1973, parliament created a politico-civil advocacy group and then tasked it to regulate lawyers instead of creating an organisation that regulates lawyers and yet has some ability to engage in politico-civil advocacy. The LAZ Act, as it I had mentioned last week, is very unusual from other legal regulatory acts in the common-law jurisdictions. The objectives of LAZ in the LAZ Act seem to be more focussed on politico-civil advocacy than actual regulation of lawyers. My advocacy is simple in this regard: any association that regulates lawyers, must regulate lawyers first and foremost! This is not the case with LAZ as its home statute makes it concentrate more on politico-civil advocacy than on lawyer regulation. For those interested, just go to the websites of the Law Society of Swaziland, the Law Society of Zimbabwe or check the Malawi legal practitioner act and you will see that Zambia’s LAZ Act has departed quite remarkably from commonwealth norms.

My suggestion here does not in any way mean that lawyers should not involve themselves in politico-civil advocacy. They must. But they must not do so through a regulator. Lawyers must empower themselves and organise themselves in any way they want to exercise their constitutionally protected rights to speech and association, without conflating the roles of the regulator in the process. My solution therefore, proposes to split the current Law Association of Zambia, into two bodies: a regulatory body (to be called the Law Society of Zambia) and a politico-civil fraternal association to be called the Law Association of Zambia. The LSZ will have lawyers self-regulating themselves and concentrating on standards, training, admission, licencing, and discipline. The new LAZ on the other hand can be an all-encompassing voluntary organisation that can participate in society as a civil society organisation. My proposal here is very different from what is being proposed by Hon. Kelvin Sampa who rather than splitting regulation from fraternity, wants to create more associations like LAZ that combine both regulation and fraternity. What is broken with LAZ cannot be fixed by created more LAZs, but by splitting the regulatory function from the fraternal politico-civil advocacy function.

Fifth, the regulator of lawyers must not be concentrated in Lusaka alone, but must focus on the whole Zambia. This principle is very connected to the second principle above. Clearly, out of the 1,000 licensed legal practitioners in Zambia, almost all of them are concentrated in Lusaka. The regulator must make it easier for lawyers to practice outside of Lusaka. Milenge can do with a lawyer. Apart from economic incentives, there should be practical incentives in place to attract lawyers to the Zambian interior. How can this be done? The regulator should do away with the rule that forbids new bar calls from starting their own law firms. The requirement that new calls should work in a firm for five years before they can start their own firm makes no sense at all. This requirement perpetuates the centralism of Lusaka. Obviously, most firms are in Lusaka and so the new bar calls would stay in Lusaka and by the time it is five years, they would have buried their roots deeply into Lusaka making it difficult for young lawyers to spread themselves around Zambia.

Sixth, the regulator of lawyers must explore a formal regulation of paralegals. Almost all other professions have some regulated para-professionals: accounting, medicine, surveying, etc. have their own para-professionals. Zambia does not have paralegals as a recognised and regulated body of professionals. The future regulator must explore how paralegals can be regulated. A regulated paralegal regime may help with access to justice issues.

Zambia’s legal future is very bright and I hope this article will contribute to the debate of how best to regulate an important profession.

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Suggested Citation: Munshya, E. (2017). Regulating Lawyers In Zambia: principles and practice. Elias Munshya Blog. (www.eliasmunshya.org) (April 10, 2017)

September 2016 ©MBKoeth

Elias Munshya, BA, MA, LLB, MA, LLM, MBA, MDIV.  ©MBKoeth

 

 

Does the Law Association of Zambia Act (CAP 31) Over-Politicize Zambia’s Legal Profession?

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

Now that the Zambian parliament could be debating ways to revamp the way lawyers are regulated in Zambia, it is prudent to investigate how the Zambian statutes regulating legal practitioners compare with those in the Southern Africa Development Community (SADC) region. The SADC region obviously includes several countries who do not follow the English common law system. This article focuses only on a handful of countries with the common-law system: Zimbabwe, Botswana, Swaziland and Malawi.

Primary home statutes that regulate lawyers in these countries are very similar to each other. It seems that the respective legal practitioners’ acts were adopted from the English colonial model, and that model remains persistent to date. These home statutes differ in name, but they remain essentially the same in effect and practice – they regulate lawyers.

There are several similarities in the way these jurisdictions regulate legal practitioners. Legal practitioners are governed by a corporate body of some sort. The Law Association of Zambia (in Zambia), the Malawi Law Society in Malawi or the Law Society of Swaziland (Swaziland), are the examples of the common nomenclature.

The statutory objectives of the lawyer bodies can be grouped into three categories:

  • regulatory objectives,
  • representative-fraternal objectives, and
  • politico-civil objectives.

Regulatory objectives have direct bearing on the education of lawyers, fitness for practice, guidelines, licensing and disciplining of lawyers. Representative-fraternal objective are aimed at bringing lawyers together for fellowship, education or promotion of mutual social interests. Politico-civil advocacy objectives aim to participate in the general politico-civil advocacy and uphold the rule of law in their respective countries. It is on this point that one notices the differences between the governing statutes and objectives of the lawyer bodies in Swaziland, Zimbabwe, Botswana, Malawi and those of Zambia. By far, the Law Association of Zambia has more objectives in the third category than any other lawyer bodies in SADC. Could this explain why LAZ is more politically outspoken than their counterparts in the southern region?

The Law Society of Zimbabwe lists 18 statutory objectives and powers. Of these, only 2 can be said to fall into the category of politico-civil advocacy. Twelve statutory objectives of the Law Society of Zimbabwe are aimed at direct lawyer training and regulation. The Zimbabwean statutes do not prioritize politico-civil advocacy for its lawyer body.

Contrasting Zimbabwe with Zambia, the difference is noticeable. The first statutory objective of the Law Association of Zambia is “to further the development of law as an instrument of social order and social justice and as an essential element in the growth of society.” The LAZ objectives do not begin with the regulation of lawyers at all. LAZ objectives seem wider in scope and in their view of the role of the lawyer regulatory body. In fact, of the 15 statutory objectives for the Law Association of Zambia, 8 are dedicated to politico-civil advocacy, a huge reverse when compared to Zimbabwe or Swaziland. LAZ is definitely much more attuned to political and civil advocacy than its counterparts in the southern region. The LAZ Act only dedicates 5 of its statutory objectives to lawyer regulation, training or discipline. It would be interesting to study how we got our LAZ Act. Who drafted it? What made them make LAZ so inclined to politico-civil matters rather than professional regulation by departing so markedly from the colonial model of the legal practitioner’s acts?

The statutory objectives of the lawyer bodies give us a guide as to where it would focus its attention. That being the case, lawyer bodies in Zimbabwe, Swaziland, Malawi, or Botswana focus their attention more on regulation of its lawyers than does Zambia which focus more on the wider advocacy as a custodian of the law for the greater good.

Perhaps as the government and the public are asking questions about how the legal profession may be developed and advanced in Zambia, it could be the time to retool the Law Association of Zambia from a focus on politico-civil advocacy to regulation and capacity building of the profession. Zambia cannot afford to sacrifice lawyer development at the altar of politico-civil engagement. Or if change is too difficult to come by, LAZ could be encouraged to give as much attention to regulation as it does politico-civil advocacy.

I should point out here that the Zimbabwean model is by no means a good standard. But it helps Zambia to realise just how much professional and regulatory development has suffered due to an over-focus on political advocacy.

If we are looking at amending the LAZ Act, I would suggest that we also focus on its objectives or perhaps make the LAZ Act much more inclined towards the profession. Zambia is a democracy and lawyers will continue to play a role in its governance. But Zambia also needs good lawyers who are very well developed in their court advocacy skills and in many other legal areas apart from constitutional or political law. The law is much wider than an over focus on constitutional law and disputes. We need commercial lawyers, legal researchers and indeed maritime lawyers. This can only be achieved by a regulatory body that is truly focused on lawyers serving the public good rather than just engaging in the never-ending political squabbles.

Looking at the recent press statements from LAZ would give you the picture. LAZ was living its statutory objectives by issuing politico-civil statements in almost 95% of the time. The question is, is LAZ as committed to enhancing the legal profession as it is committed to commenting about everything political under the Zambezian sun? If we need a more professional regulator, now could be the right time to do so. But as always, we might need to start from the very statute that put us in this situation – the LAZ Act (CAP 31) that requires reform.

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Suggested Citation: Munshya, E. (2017) Does the Law Association of Zambia Act (CAP 31) Over-Politicize Zambia’s Legal Profession? Elias Munshya Blog. http://www.eliasmunshya.org (March 30, 2017)

September 2016 ©MBKoeth

Elias Munshya, BA, LLB, MA, MA, LLM, MBA, MDIV (of the Alberta Bar) ©MBKoeth

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.