Monthly Archives: November 2012

Did Prof. Clive Chirwa Lose Zambian Citizenship?

E. Munshya, LLB (Hons), M.Div.

To begin with, I must mention that I belong to that school of thought which believe that the current law in Zambia that deprives Zambians from acquiring dual nationality should be amended. I am of the opinion that we so amend the constitution as to allow for dual nationality. This is the right thing to do. Additionally, I am aware that unfortunately, until the law is amended we should not shy away from pinpointing the abrogation of the law as it stands now. I am aware that the law sometimes is inflexible and political realities sometimes demand that we make amends to the laws as we go. However, the law is such that in the case of Professor Chirwa he could potentially be stateless. I will recap this argument and then use several authorities in this regard.

First, Professor Chirwa was at one time a bonafide citizen of our republic. At some point in his life, however, he exercised the right and freedom to become a citizen of the United Kingdom. At the time that he so decided to become a citizen of the UK, he by operation of law ceased to be a citizen of the Republic of Zambia. This is what Article 9 of the Zambian constitution says.

“Article 9. (1) A person shall cease to be a citizen of Zambia if that person-
(a) acquires the citizenship of a country other than Zambia by a voluntary act, other than marriage; and
(b) does any act indicating that person’s intention to adopt or make use of any other citizenship.”

CAP 124 (19) (2) of the Laws of Zambia reaffirms the constitution by declaring, inter alia:

“Any citizen of full age who by voluntary act, other than marriage, acquires the citizenship of a country other than Zambia, or who does any act indicating his intention to adopt or make use of such other citizenship, shall cease to be a citizen on the date of his acquisition of the citizenship of that other country.”

In view of this provision, Professor Chirwa ceased to be a citizen of Zambia the moment he pledged allegiance to the Queen of England and became a British citizen. This position, is unfortunately the present law.

Professor E. Clive Chirwa

Professor E. Clive Chirwa

Second, the case of the Ugandan Indians does not apply in this case. The case of Thakrar v Sec of State (1972) was not about a person like Professor Chirwa. It was about Indians who came to Uganda as British Overseas citizens. As British Overseas citizens, Britain was obligated to protect them after they were expelled by Idi Amin. Unfortunately, Professor Chirwa was not a British Overseas Citizen. Indeed, the Supreme Court litigated this matter in the great case of Lewanika and Others v Frederick Chiluba (1998). In this Chiluba case, the court held that no black Zambian could claim to have been a citizen of Britain based on the status of Northern Rhodesia as a Protectorate of Her Majesty the Queen. In any case, Professor Chirwa left Zambia well after Zambia had gotten independence and as such, his status as a citizen of Zambia cannot be covered by any subsisting colonial laws. He left Zambia as a citizen of Zambia based on the Zambia Independence Act and its accompanying constitution. As such, he cannot claim it in any other way. The Ugandan case simply does not apply to him.

Third, the facts are clear. Let me reiterate them here. Professor Chirwa was a Zambian citizen but then he lost Zambian citizenship after he acquired British citizenship. To regain Zambian citizenship he has to follow through the law and re-apply to the Citizens Board of Zambia. If he does not do so, he potentially opens himself up to problems when this government has left office. I must add here another issue connected to the ever precarious concepts of Zambian citizenship. The one to do with President Kenneth Kaunda’s citizenship. Unfortunately, just like the Ugandan case, the Kaunda case cannot help Professor Chirwa. President Kenneth Kaunda was declared “stateless” by the Ndola High Court. On appeal, the claimants (Mr. Katyoka and Mr Mushota) together with the Attorney General Bonaventure Mutale decided not to defend the High Court ruling in the Supreme Court. The Supreme Court effectively reversed the High Court decision without actually going to trial. But the Kaunda case raised some important issues which can be distinguished from Chirwa. Kaunda is distinguishable from Chirwa because with Kaunda we were not dealing with relinquishing of Zambian citizenship, obviously with Chirwa the case is that he had relinquished Zambian citizenship when he became a citizen of Britain. Additionally, Kaunda is distinguishable in the sense that it had to deal with status of citizenship at independence, with Chirwa it is about his actions after independence.

Fourth, our laws do in fact allow the President to impute Zambian citizenship on some people which in his opinion warrant such an honour (CAP 124 (13) (2)). If indeed President Michael Sata has so decided then he will issue an instrument in this regard that will so specify granting Professor Chirwa the honorary citizenship as the case may be.

This is what CAP 124 of the Laws of Zambia says. At section 13.

(1) The President may as a token of honour cause to be registered as a citizen any person who in his opinion has done signal honour or rendered distinguished service to Zambia. (2) The President may cause to be registered as a citizen any person not otherwise entitled to or eligible for citizenship of Zambia with respect to whom special circumstances exist which, in the opinion of the President, warrant such registration.”

Dual nationality is in Zambia's interest - Munshya

Dual nationality is in Zambia’s interest – Munshya

Fifth, where does being “stateless” then come in? It comes in because Professor Chirwa says he has renounced British Citizenship. If he has done so, without acquiring Zambian citizenship then he could potentially be stateless. Again, I am using “statelessness” here not as a cultural term, but a legal one. Zambian citizenship is a legal status, not a cultural one. You can be a Zambian by culture, but that does not by itself grant you the privilege of legal citizenship. Obviously, Professor Chirwa must become a citizen legally, other than depending upon his cultural or ancestral root to Zambia. He by his own will and volition became a citizen of Britain. He cannot be a Zambia at the same time as he is a citizen of Britain. If indeed he has repudiated British citizenship he must now apply to the Citizenship Board for restoration of his Zambian citizenship. As stated above, we are saying this with full understanding that President Sata may use his powers to confer citizenship upon Professor Chirwa, but until he does so legally, Professor Chirwa is in a precarious situation.

Lastly, we continue to appeal to all Zambians to continue pressuring the government to push through reforms to begin recognizing dual nationality. There are so many former Zambians like Professor Chirwa all over the world who want to come to Zambia, but when doing so they do not want to be treated as foreigners at the Airport. There are so many former Zambians who are tired of carrying the Zambian passport deceptively knowing full well that they have lost Zambian citizenship.

Note: Opinions written in this article are not meant to convey legal advice. Zambians seeking specific legal advice on this issue should consult members of the Zambian Bar.

A Hybrid of Absurdities: The Impact of British & American Political Systems on Zambia’s Constitutional Development

By E Munshya wa Munshya

The Zambia Independence Act 1964

In the 1960s when the British parliament at Westminster was debating Zambia’s independence (Zambia Independence Act, 1964), there were several questions that needed to be answered. Prominent among these questions was the constitutional and political system that the former colony was going to adopt. It was clear that as early as 1963, Zambia had a separate Head of State and a separate Head of Government. Sir Evelyn Hone was the Head of State while Prime Minister Kenneth Kaunda was Head of Government. In the parliamentary debates at Westminster, the British Government decided to create a hybrid of both the Westminster system as well as the American political systems.

The British had somehow convinced themselves that a divided executive (head of state separate from head of government) cannot work for African nations such as Zambia. As such, they chose to integrate the functions of head of state with that of head of government to be deposited in the office and person of an elected President. Hon. Mr. John Tilney, The Under-Secretary of State for Commonwealth Relations and for the Colonies, told the House of Commons on 7 July 1964: “Zambia wishes to have an executive President with wide powers, giving firm and effective leadership.” Just how, he determined that Zambia needed this type of executive president is at the heart of our current dilemma. As such, at the time that they settled for a presidential system they left unchanged the parliamentary system. This has created a constitutional dilemma. As the nation develops, the impact that such an oversight has on Zambia’s constitutional development are enormous. To look into this constitutional dilemma and absurdity, a summarized look at Westminster and Washington systems suffices.

Washington and Westminster Systems

The British political system can be summarized as follows. People vote for members of parliament and the party with the highest numbers of seats in that parliament get to form the government. Traditionally, the leader of that party gets to become the head of government. On the other hand, the head of state still remains the Monarch. In a British parliament, government is formed directly from parliament and parliament can decide at any time to change or alter who can be a member of the executive. Theoretically, it is the members of parliament who decide who should be the head of government and which party would be the ruling party after the elections. The process is indeed more complicated than this, but this suffices for now.

In the Washington system, a president is head of both the American state and the federal government. Without going into the Electoral College system, it suffices for now to mention that executive power in America is deposited in the person and office of the President. The American parliament (Congress) is elected separately. The president chooses members of his or her executive outside of congress. In America, the ruling party or the president’s party is not predicated by how many numbers he has in congress.

At Zambia’s independence, Britain chose to integrate both its Westminster system as well as the Washington system for the newly independent nation of Zambia. And so just like America – a Zambian president was going to be both head of state and head of government. Second, a Zambian president was going to be elected separately from parliament. Third, a Zambian president was going to be elected through direct universal suffrage. The dilemma was however, on the relationship between the president and parliament. Britain decided that it was going to leave intact, a Westminster styled system for the Zambian parliament. Just how that was going to work in a nation that had developed a different path to presidential power remained to be seen.

And so, the Zambian parliament adopted almost all the traditions from Westminster. It was elected by direct universal suffrage and its rules would be predicated upon the Westminster system. However, unlike Westminster, the Zambian parliament was obviously different. First, it had no supremacy. While the Zambian parliament, as the legislative arm of government, does have power to make new laws, this role is subservient to the Zambian constitution. Unlike the Westminster parliament, which can legislate on anything and everything, the Zambian parliament can only legislate on what the constitution allows it to. Additionally, unlike the Westminster system where courts cannot reverse an Act of Parliament, the Zambian High Court has the power to strike down an Act of the Zambian parliament it deems unconstitutional.

Second, the Zambian parliamentary seats had no impact on who holds executive power. This is perhaps the most misunderstood phenomenon of our republic. In Zambia, executive power is deposited in the person and office of the republican president. The republican president is elected directly by the people through universal suffrage. After, he is elected; he then has the power and duty to appoint his executive from among the members of parliament. As has been seen recently with both President Mwanawasa and President Sata– these members of parliament need not be from his political party. In Westminster, on the other hand it is parliament that determines the executive in general and the Prime Minister in particular. In Westminster, parties can form coalitions and make deals about who should be Prime Minister. In Zambia, parties cannot make deals on who should be head of state or head of government – this question is settled directly by the electorate.

The Washington and Westminster System’s Impact on our Constitution

How then has this impacted Zambian constitutional development? First, it has impacted parliament itself. Recently, the Speaker of the Zambian Parliament, Hon Patrick Matibini who apparently is a constitutional lawyer ruled that since the biggest opposition in parliament did not have 55 members of parliament it should on that note cease to be recognized as the “Official Opposition” in parliament. At one time, a former speaker, Amusaa Mwanamwabwa even went further by declaring the Official Opposition is necessary because it could actually rule in the event of failure by the ruling party. This thinking is untenable in the Zambian system. The conflation of Westminster to our system is deep and abiding confusing even the officers that should know better. The concept of numbers in parliament does not have an impact on the deposited power of Zambia’s executive president. In fact, the idea of the ruling party in Zambia should be quickly divorced from the Westminster mindset. Parliamentary seats in Zambia have no impact on who becomes the head of our state and government. Conversely, Zambia could face a situation where the President is elected and his party has no seat in parliament. In that event it would be absurd to refer to parliament in terms of the ruling party and the opposition party.

Secondly, this has impacted on the exercise of presidential powers. It is clear that the Zambian president does weld too much power. The British wished it to be so. However, the problem is that the president even towers over parliament. At one time, instead of leaving it to parliament to decide on who should be recognized as leader of the opposition, President Mwanawasa went to parliament and chose Ben Tetamashimba to become leader of the opposition in parliament. This overreach of the president into the parliament is indeed a constitutional dilemma. In the British system the Prime Minister is both a symbolic and actual member of the National Assembly. In Zambia, the president is member only in his capacity as Head of State, in his ceremonial capacity. His reach into parliament is an anomaly. If indeed, the Zambian president was to be styled after America, shouldn’t Zambia have adopted the same system where an American president is not a member and has no official role in congress?

Thirdly, the hybrid system has made it difficult to know circumstances under which the President can be impeached. In Westminster, parliament can theoretically remove, alter or change the person occupying the office of Prime Minister. In fact, even the Head of State comes into office by an Act of Parliament. Additionally, at Westminster, parliament can pass a vote of no confidence in the Executive and that could trigger an election. In Zambia, that is not quite clear. In fact, constitutionally parliament cannot pass a vote of no confidence in the president. Parliament cannot remove the president except if the president has violated the constitution. Again what this means is simple – the Zambian president has power outside of parliament. But is this be desirable?

Fourthly, the hybrid system has created a constitutional absurdity with the relationship between the president and his political party. At Westminster, the Prime Minister’s party has some control over him. The party could theoretically change its leadership and thereby fire the Prime Minister. In Zambia, it is not quite like that. If the so called ruling party for example decides to disqualify the president from being a member – that would not have an impact upon his constitutional office. In fact, just like the Malawian example, a president can resign from his party, and form a new party. Overnight, Zambia could have a new ruling party simply because the president has changed parties.

Solutions to this Dilemma

What then should the solution to this dilemma? First, Zambia could try to divorce the unworking Westminster parliamentary traditions from its parliament. Terminology such as ruling party and opposition party are stale in the Zambian system. Looking at parliamentary numbers is only significant to the legislative agenda and not to the structural mechanics of government. Parliamentary numbers are irrelevant in Zambia.

Second, Zambia could try to adopt the South African system where the Executive president is nominated and appointed by parliament and not through direct universal suffrage. In that way, the president would be amenable both to his political party and also to parliament. In the South African system, it is parliament that is mandated by the people to elect the Republican president. As such, there could be real accountability in that system. This happened for example with Thabo Mbeki who was forced to resign from office after receiving an emissary of the ruling party. The emissary delivered a simple message, “Mr. President, the ANC has decided to deploy you elsewhere.” After Mbeki’s resignation, South African parliament elected its third black President Kgalema Motlanthe, who served only for a few months.

That the hybrid had created absurdities is quite clear. The colonial Britain has been gone for the past 50 years. The question of whether we could make changes to our constitutional make-up is alive and well. This year and next year – Zambia will have another opportunity to review its constitution. This review should in my opinion question the very heritage of this hybrid.