Monthly Archives: December 2010

King Muwelewele of a Christian Nation: Why the Supreme Court Was Wrong in “Attorney General v Roy Clarke”

By Elias Munshya wa Munshya

This week will be the nineteenth anniversary of President Chiluba’s declaration of Zambia as a Christian nation done on 29th December 1991, and the seventh anniversary of Roy Clarke’s “Mfuwe” article, written on January 1 2004. The controversy, interest and debate generated by these two events are still fresh in theological, academic, legal and journalistic circles many years after. Curiously, there is nothing that links the two events together more bizarrely than the court case involving the 2004 deportation order made against Roy Clarke. What the judges said about Christianity and Christian values in the Roy Clarke case is so relevant in giving us the glimpse into judicial attitudes to the Declaration of Zambia as a Christian nation. While there has not been any legal or constitutional challenge to the declaration itself, the case of “Attorney General v Clarke” exposes some inconsistencies within judicial reasoning over the Declaration. Consequently, in examining this relationship this article explores why in this case the Supreme Court may have gotten wrong the relevance of Christian values in Zambian society.

Roy Clarke in his weekly column of The Post, did a piece he entitled “Mfuwe” where he satirically characterised the Zambian cabinet as animals. Taking animal metaphors from the tourist enclave of Mfuwe, Clarke used expressions such as King Elephant Muwelewele in obvious reference to President Mwanawasa. He also used the Baboon metaphor to satirise then vice-president Nevers Mumba. This Mfuwe article greatly displeased the Mwanawasa government, and Clarke was ordered deported on January 3 2004 by Hon. Gen. Ronnie Shikapwashya the then Minister of Home Affairs. Major reasons for so deciding were that as a white man, Clarke deliberately used racist language. Additionally, it was claimed that what he did was contrary to Zambian cultural values.

Unsurprisingly, Roy Clarke appealed against the Hon. Minister’s decision. After granting him an injunction, the Hon. Justice Philip Musonda of the Lusaka High Court latter quashed the deportation order. In his ruling, Justice Musonda declared freedom of expression to be sacrosanct. He mentioned that even if Clarke’s piece was “irritating, offensive or shocking” it still fell within the confines of speech that must be protected by the Constitution of Zambia. Controversially, Justice Musonda added that deporting Roy Clarke would go against the Christian values espoused by Zambia a Christian nation. The preservation of the family is one such Christian value. Consequently, if Clarke were to be deported, his wife and children would be deprived of his presence thereby contradicting Christian values which Zambia embraces.

As can been gleaned from Justice Musonda’s other judicial opinions, arriving at this conclusion should have been natural for him. He is a fervent believer in press freedom and holds the doctrine of separation of powers very dearly. He is also a courageous judge. He at one time reversed the decision of an administrative tribunal presided over by judges, a court his senior. One of his university students remarked that he based the incorruptibility of the judicial office to that of the Lord Jesus Christ.

After Justice Musonda’s verdict restoring Roy Clarke’s permanent residence status, Zambia’s Attorney General appealed against this ruling. The Zambian government felt that Justice Musonda was wrong to allow Roy Clarke to stay. GRZ interceded with the Supreme Court to have another look at the case. The Supreme Court bench sitting with Zambia’s most senior Justices-Chief Justice Ernest Sakala, Deputy Chief Justice David Lewanika, and Justices Dennis Chirwa, Florence Mumba, Peter Chitengi, Sandson Silomba, and Christopher Mushabati- dismissed the government’s appeal. However, in dismissing the appeal and upholding Justice Musonda’s decision, the Supreme Court nevertheless fervently disagreed with almost all the reasons given by Justice Musonda. This article limits itself to the “Christian nation” and “Christian values” reasons. From Justice Musonda’s opinion, Christianity as espoused by Zambia’s status as a Christian nation provides some values that can be legally and constitutionally relied on. As such, he invoked the importance of those Christian values to Roy Clarke’s situation. Accordingly, if Roy Clarke were deported he would be deprived of family. This deprivation is unnecessary according to Justice Musonda, as it goes against Christian values in a Christian nation.

In disagreeing with Justice Musonda on the relevance of “Christian nation values”, the Supreme Court ruled that the Declaration of Zambia as a Christian nation lacked juridical value. Since it lacked juridical value, the Christian nation declaration or Christian values cannot be relied on constitutionally. The honourable justices of the Supreme Court even castigated Justice Musonda by stating, “We must say here that we disapprove of this kind of approach by a Judge.” It seems then that what the Supreme Court wanted to concentrate on with regard to Roy Clarke’s case was points of law, statutes, or indeed common law principles. The Supreme Court did not want to tolerate personal opinions or even the so called “Christian values.” Particularly, the thought that Justice Musonda may have regarded Christian values as a source of law was principally problematic for the Supremes.

However, what is confusing as the opinion continues is that the Supreme Court justices themselves, do exactly what they are condemning Justice Musonda for. They condemned Musonda for invoking Christian values and yet they too veer off from discussing only relevant statutes and case law to go on to invoke the relevance of Zambian cultural values. The Court stated: “We have no doubt that in every other country you cannot say and write things using words and expressions that are not in consonance with the cultural values and norms of the people of that country.” As such, while criticizing Musonda, the Supreme Court created an unnecessary dichotomy between “cultural values” and “Christian values.” With the latter having no juridical value, while the former does. Additionally, the court failed to consider the extent to which these very cultural values have been influenced by Christian values. While Musonda may have linked the two, the Supreme Court found it relevant to separate them. Essentially, then what it refers to as Zambian cultural values have juridical value while Christian nation values do not.

What the Supreme Court may have missed here is that Zambian cultural values are inextricably linked to Christian values. The Declaration of Zambia as a Christian nation did not necessarily create a new set of values for Zambia, but rather affirmed Zambian traditional cultural values which are mostly affirmative of Christianity. Justice Musonda should not have been reprimanded for his “Christian values” opinion. It was the Supreme Court that needed to see that Zambians adhere very dearly to Christian values—and the Christian nation declaration is just one way of showing that. Therefore, the claim that the Christian nation declaration and Christian values lack juridical value is quite worrying.

Regina Chiluba’s Acquittal: Kafunda and the Prosecution’s Fiasco

Regina Chiluba’s Acquittal: Kafunda and the Prosecution’s Fiasco

By Elias Munshya wa Munshya

The Lusaka High Court’s ruling when acquitting Regina Chiluba from the charges she was convicted for is a very significant legal opinion. All Zambians both within the legal profession and outside it should read it and deeply reflect on it. What Justice Hamaundu mentioned in his judgment reflects seriously on the prosecution and indeed on the trial magistrate Charles Kafunda himself. One would wonder why the Zambian prosecution could get this matter so wrongly considering that since independence the Zambian prosecution has been charging criminals with the offences of “possessing stolen property” and “theft”. The fact that they failed to even follow routine legal procedure is just despicable to say the least.

First, as observed by the High Court’s panel of three judges, Regina Chiluba’s cases were not properly investigated. You wonder what the prosecution was rushing for. It is rather sad that they charged her with possession or failure to account for property suspected to be stolen property when no one had reported the said property stolen. The prosecution simply concluded that since the TV had the words state house embossed on it, it then belonged to State House. They also concluded that since it was bought on State House stationery that provided the prima facie case to charge Regina of possession. But in all this they had missed an important element in theft. One can only be guilty of theft if he has dishonestly appropriated property belonging to another with intention to deprive the other permanently of that property. In this case, no body claimed to have been the original owner of that property and most crucially on one from State House reported the television as stolen. On this point the prosecution failed terribly.

Second, the prosecution failed because they expected Regina Chiluba to give them a reasonable explanation about the properties. In accordance with the ground breaking case of Woolmington v DPP [1935], in criminal matters the burden of proof lies with the prosecution to prove their case beyond reasonable doubt. There is no expectation that the accused should proffer reasonable explanation about the offence she is accused of. There is no way that the prosecution should have reversed the burden of proof back to Mrs. Chiluba. She did not owe the prosecution or indeed the investigators any reasonable explanation at all. An accused person in criminal matters is not expected to volunteer information that may further incriminate them. The prosecution will have to provide their evidence beyond reasonable doubt. Rightly, as noted by Judge Hamaundu it is sad that one of the reasons why she was convicted was that she did not give reasonable explanations. She did not need to. The prosecution cannot hide their inefficiency under the cloud of the defendant’s inconsistent testimony.

Third, the High Court also observed that the investigators’ failure to interview Dr. Frederick Chiluba or even summon him as a witness to have been a very weak legal judgment. The prosecution alleged that Regina got stolen money and a television set from Dr. Frederick Chiluba. But they did not interview this Chiluba, and neither did they charge him with stealing those very properties. It is not that, Chiluba was outside their jurisdiction. It is not even that Chiluba refused to cooperate with them. They just decided to ignore him. And seriously, the consequence of that ignoring has come to haunt the prosecution. This was badly prepared case and it failed from the moment that they charged Regina with receiving stolen property. The prosecution should have known better. The offence of theft and possession or handling of stolen goods is perhaps the most common offence before our magistrate courts today. The prosecution has been handling these cases since independence. How did they fail to cover that loophole?

Fourth, Magistrate Charles Kafunda is seriously indicted in the High Court’s opinion as well. The High Court ruled that there was no prima facie case in the first place, against Regina and as such she did not even need to be put on defence. We could have given Kafunda a benefit of doubt if at all the High Court’s acquittal was simply based on a legal technicality. But here there is no legal technicality. The High Court is clear; there was no need to proceed in the first place. Undoubtedly, Kafunda could have saved himself this legal embarrassment. If Kafunda had any doubt in his mind about the prosecution’s case that should have worked to the accused’s favour. But the question still remains, why did Magistrate Kafunda go on to put Regina on defence and in fact go ahead to convict her, when the prosecution’s case was so weak?

On the acquittal there are those who feel that the invisible hands of the State may have played a part in the acquittal of Regina Chiluba. But with a case so blatantly inadequate there can only be one conclusion: Regina Chiluba was acquitted because she was innocent of those charges right from the start. But for now the learned judge Magistrate Kafunda will have to do a little bit more growing in his legal skills.

King Julian of Wikidascar: Why Wikileak’s Cablegate is just ridiculous

By Elias Munshya wa Munshya

One of the most comedic characters of the movie Madagascar is the self-proclaimed Sovereign of the Madagascan wildlife, King Julian. In real life, however, we have another King Julian. This time it is Julian Assange, an Australian who styles himself as the king of “holding governments accountable.” In fact the motto of his wikileaks organisation is “open government.” He says that he is fighting for open governments all over the world. Wikileaks has indeed, as a whistleblowing website, been instrument in exposing American government corruption. It had been instrumental in pointing out specific matters of government cover-ups in its operations. It was quite instrumental in exposing the fact that the Apache helicopters deliberately killed Iraq civilians in the long running Iraq war. Those efforts at exposing specific government corruption and cover-ups are commendable and should be encouraged. But the latest episode, which wikileaks has dubbed “Cablegate” is ridiculous and should be condemned by all. This is for several reasons.

First, the so called Cablegate betrays the function and role of legitimate whistleblowing. Whistleblowing is an activity that should be directed towards specific illegal matters that a government or any government body engaged in. However, with the latest 251,000 cables are not explicitly revealing any specific corruption. In fact, the major driving force behind the cables is simply to leak them because King Julian can. In the context of Zambia, we need whistleblowers to expose corruption at State House and in ministries. But such exposition must be specific. It would be ridiculous for someone to leak thousands of files of government communication, simply because they can.

Second, King Julian is wrong because his Cablegate has exposed more human gossip than anything else. It is definitely sexy and interesting to expose how ambassadors gossip about Gaddaffi’s blonde nurse. But that it just what these cables are, gossip. I must here mention that gossip is necessary to the healthy function of human society. The least as well as the greatest among us need a little gossip. We all need a little filling in the blanks, and a little bit of conspiracy theories to thrive. And in so doing we want the assurance that our gossip will be private. However, exposing what these world leaders where saying behind each other’s back is ridiculous because it exposes the most common and bane element of humanity. We all want our gossip to be secret. But when someone comes up with the power to expose all that gossip, he becomes an enemy of humanity. And that it is what King Julian is potentially becoming.

Third, King Julian is pontificating himself as a good man. For him, he feels that governments and the people behind them are trying to do evil to the world. And as such the world needs a saviour like him to save it. But there is a saying that says that he who comes to equity must come with clean hands. When King Julian comes out to expose the skeletons of governments and the people who serve in those governments, he forgets that he too is just human who equally has even worse skeletons. Of course, the most ridiculous of the whole Cablegate affair is that while King Julian was busy championing for more open governments, he had some serious opening to do with two Swedish women. One accuses him of having sex with her, while she was sleeping and another accuses him of not using a condom when told to do so. This is so much more for the man trying to hold governments accountable.

And now King Julian is threatening to release even more embarrassing cables as long as the Swedish and the British police continue to victimise him with these allegations. For him then, the 251,000 cables are a way to blackmail the governments into dropping the rape charges he faces. May be he needs advice that the next time he needs a leak, he had better wake her up and use a condom if she so asks. At least the American government did not get the chance to demand that he wears one when he illegally accessed the 251,000 cables. Or maybe it is okay because the American government is in fact not a Swedish woman.