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.

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