Monthly Archives: June 2010

A Comedy of Contempt: How M’membe Met His Match

By Elias Munshya wa Munshya

Since 1991, Fred M’membe and his The Post Newspapers have been great custodians of Zambia’s press freedom. In fact, many of the scores that Zambia has attained in the democratic dispensation have been due to the courage of M’membe and his The Post. M’membe’s great work has undoubtedly ruffled many feathers and earned him enemies in high places. Since 1991, he has been a thorn in the flesh of many governments. His activities have led him to perhaps be the most powerful Zambian outside of politics and government. He lives in his own world and commands great power, the power of the pen. But as the old adage goes, “absolute power corrupts absolutely”. This maxim is true at all levels of human endeavour. Absolute power in politics corrupts absolutely and this is true for lawyers, churches, popes as well as the press. In the case of The Post, their commitment to truth and press freedom created lots of power for its Chief Editor M’membe, and this power if left unchecked had the potential to corrupt him absolutely. A great preacher of justice could easily become an evangelist of injustice, and this is what happened to one Fred M’membe.
All of Zambia’s presidents proved to be on match to M’membe. Kaunda tried to finish him but he could not. In the dying days of his presidency, it was The Weekly Post, as it was then, that led a press campaign against Kaunda.

During Chiluba’s presidency, Chiluba attempted to incarcerate M’membe but the courts came to his defence and he was acquitted on several occasions. On one occasion, The Post published a comparison between the military capabilities of Zambia and Angola. This obviously displeased Chiluba who swiftly charged M’membe with espionage. The courts promptly dismissed the case and let M’membe free. Additionally, Speaker Nabulyato charged M’membe with a draconian “contempt of parliament.” However, to parliament’s shock the High Court reversed the sentence declaring that Parliament unconstitutionally usurped judicial powers. The Post continued on their crusade against Chiluba, to the extent of fabricating a story that he was born the Congo. To buttress this argument, The Post found a Mr. Kafupi who claimed to be Chiluba’s father. One of the Post’s edition in fact, carried two pictures one of Kafupi and another of Chiluba, which showed striking resemblances between the two. In a civil case involving Kafupi, the Supreme Court refused to subject Chiluba to a DNA test. It was Chief Justice Ernest Sakala who dissented against the majority and saw no problems with subjecting Chiluba to a DNA test. In spite of this, Chiluba failed to cage M’membe.

When Mwanawasa came to power, it was The Post that published stories of Mwanawasa being a cabbage. As a lesson in humility, Mwanawasa countered that charge and claimed that he, in fact, was a piece of steak. The Post, Edith Nawakwi and Dipak Patel were charged with defamation. The cabbage case was discontinued, however. Furthermore, in one of its editorials, The Post reserved some strong words for Mwanawasa, calling some of his actions stupid. The police quickly pounced on M’membe and remanded him at Kabwata Police. He, however, stood his ground and called for the High Court to strike down the law that criminalized presidential defamation. M’membe claimed that a stupid president should not hide his stupidity behind the cloth of presidential defamation. This case never went to court; it was withdrawn by Mwanawasa. The might of presidential powers were no match to cage M’membe. He was acquiring for himself real power and clout.

However, in the latter presidency of Mwanawasa, The Post made peace with the government and they became Mwanawasa’s greatest defenders. Levy succumbed to them by sanctioning the Nchitoic prosecutions of Chiluba and his lieutenants. The Post’s newly found friendship in Mwanawasa is also demonstrated in that the Managing Editor of the Post, Amos Malupenga, inadvertently became Mwanawasa’s personal biographer. Malupenga’s book, “Levy Patrick Mwanawasa: an incentive for posterity” was in fact born out of The Post’s profile articles of Mwanawasa and his family. During the Nchitoic prosecutions of Fredrick Chiluba and others, The Post upset Magistrate Chinyama, who banned them from his courtroom. At least in that case, The Post escaped without a sentence.

The Post working on its reputation as an invincible defender of press freedom and anti-corruption crusader seized on Banda’s support for Chiluba and quickly cast Banda as a dictator. Banda complained bitterly against M’membe, ironically calling him “morbid and peculiar”. Banda then made a huge mistake; he caused the Police to charge Chansa Kabwela with a pornography case. As the Kabwela case went to court, it was felt by many Zambians that the case had no merit and Kabwela would easily be acquitted. Picking on this, Professor Muna Ndulo an eminent legal academician, wrote an article in The Post where he accurately argued that Kabwela’s case was a comedy of errors. He quoted various authorities of law, both statute and common law, and reached a conclusion that Kabwela had no case to answer for the charges that she was facing. Ndulo’s article appeared at the time of Kabwela’s trial. Magistrate Kafunda, as the trying magistrate had problems with Ndulo’s article in The Post and allowed contempt proceedings to begin in his court. However, Kafunda’s contempt proceedings were stayed by the High Court and Judge Wood, ruled that Kafunda had irregularly commenced contempt charges.

Instead of letting the issue die, the prosecution, decided to commence the contempt proceedings in a regular fashion and brought it before Magistrate Simusamba. Simusamba was perhaps the only match for M’membe who arrogantly argued that the article, though contemptible, was justifiable. While being cross examined by Lusaka divisional chief prosecutor Mumbuna, M’membe turned the trial into a high school debate contest, mocking Mumbuna as a failure who failed to cross examine him.

Magistrate Simusamba obviously had other ideas about the case. He stood in solidarity with the trying magistrate Kafunda, and found that The Post and M’membe were criminally liable and slapped a custodial sentence on them. It was necessary to send M’membe to jail so as to help him reform. It still remains to be seen however, how and if at all, this particular convict will reform only after four months.
Zambian politicians could not cage M’membe, Kaunda tried but failed. Chiluba also tried and failed. Mwanawasa tried and lamentably failed. Banda has tried too, but failed. It looks like from this case, we have learnt that while one can get away with insulting the Head of State, the Courts of Law however, are more vicious and would not allow any amount of contempt. Contempt is alright only if it is the president you are dealing with, but contempt for court takes you to jail regardless of who you are. And Magistrate Simusamba has taught us that lesson.

UPND/PF Pact Launch: Much ado about Nothing

By Elias Munshya wa Munshya

The most anticipated launch of the UPND/PF pact has finally materialized. The Pact members were mobilized in Lusaka to launch a pact that they feel would achieve the aspirations of removing the MMD from power. But as I show in this article—the launch of the UPND/PF pact, while being a major political milestone in the country, is much ado about nothing since this launch has not answered the most perennial questions the Pact leaders must answer.

First, the real issue with the Pact is not whether the grassroots in the two parties are united or not. That is not the issue. The main issue is about whom between Hichilema and Sata will be the presidential candidate in the 2011 elections. Regardless of how many rallies and launches the Pact goes through, if it does not address the presidency, its prospects for 2011 remain bleak. A Pact candidate matters since it may determine how Zambians will vote in 2011. While the respective spokespersons of the two parties have said that the candidate will be picked through a vote-they have not elaborated how. They are just assuming that he will be picked through democratic means. Learning from history, no party has held truly democratic intra-party elections since Chiluba was elected MMD president in 1991. As such, I have no illusion to believe that there will be any meaningful democratic modalities to pick the Pact’s candidate. The two respective parties themselves have not held freely democratic elections within their parties, how then do they expect to exercise democracy when picking the candidate for 2011? All that is known, for now, is that both Sata and HH are candidates for the 2011 elections, and such an atmosphere is not helpful to convince innocent Zambians that there is a meaningful alliance.

Second, while it is true that mathematically the Pact may, taking the lead from the 2008 election, have more votes than the MMD—the political algebra just does not mean that they will have those votes come 2011. From the 2008 elections it is clear that a combination of the PF and the UPND votes comfortably beat the votes for the MMD. But that is where the faulty reasoning lies. The Pact may be assuming that people who voted for the two parties will vote for the Pact in 2011. This assumption is fundamentally faulty since it does not take into account the complex reasons why people vote in the first place. To assume that the Pact will take all the provinces that the UPND and PF as individual parties took in 2008 is flawed. As above, let me reiterate the fact that the deciding factor in the next elections will be the Pact’s presidential candidate. If the Pact fields Sata, Southern voters will not vote for the Pact—it is as easy as that. Southern voters have expressed in clear terms that the Pact will only be supported if it fields HH. On the other hand, if the Pact picked HH as its candidate—the MMD will exploit HH’s weakness as a regional candidate. This is the dilemma that the Pact faces. Either-way it is a bust for the Pact.

Third, the launch of the Pact is much ado about nothing since it fails to explain exactly what is being launched. To launch something, you need to have a plan. But the so called pact does not seem to have a plan in place. While they have a desire to remove the MMD from power, they lack a comprehensive plan of how they are going to do this, and they are assuming that by saying that they are a pact then they can easily boot out the MMD. What Zambia needs is not a pact, in the lines of the UPND/PF pact. We have tried those before and it has never worked. If it is political unity the PF and the UPND needed then what they should have done is to dissolve themselves and then form one party; head for party elections; elect a president; and then launch themselves as such. But going by Saturday’s event, they are doing things backwards. And it is this backwardness that will come to haunt them latter in 2011. This Pact has no plan and it is just wasting innocent Zambians’ time.

Fourth, both HH and Sata are right in saying that the Pact is people driven and in fact they are cautioning the people to guard the pact very jealously so that it does not fail. I see that to be a serious anomaly. Since when did ordinary people matter to Zambian politicians? I have no delusion to believe that the pact will work simply because the people say so. In 1991, unity worked because the MMD had a plan and its leaders (Wina, Mulemba, Lewanika etc) selflessly supported Chiluba once he was elected as MMD president. Besides, Wina, Mulemba and Chiluba never declared their candidacy for the 1991 general elections; they instead waited until the MMD had elected one of them as its president. From our political history, it is political leaders and not just the ordinary people that determine the Zambian political landscape. And regardless of how much ordinary Zambians want the Pact to succeed; if HH and Sata do not make it work, then it would not work. What HH and Sata need to understand is that the future of the Pact does not lie in Chiwempala, Chawama, or in Chama, but rather in Rhodes Park and Kabulonga where Sata and Hichilema live. And if they do not agree right there in Kabulonga I do not see how the ordinary people in Milenge will make the Pact work. The fact that the Pact is people driven and not leadership driven is the very reason why it will fail come 2011. HH and Sata can do the people a great service, by agreeing on a clear plan of unity which should make them excuse themselves from 2011 candidacy until their Pact chooses a president to lead the Pact. In the meantime, they are working from a wrong assumption that they are both presidential candidates until the Pact rejects one of them. How about if they worked from the assumption that none of them is a candidate for 2011 until the Pact decides on the candidate. But who am I to suggest anything to these politicians, they only do what they want to do and not what the people want!