A Major Shoots Himself in the Foot: Why Kachingwe Can’t Win at Law
By Munshya wa Munshya
Issues surrounding recent events in the MMD can be analyzed from different angles. However, in this article I wish to concentrate on only one angle. That is whether Major Kachingwe can succeed at law to have the courts invalidate the election of Nevers Mumba as MMD president. It is my opinion that it would be very difficult, in not impossible for Major Kachingwe to succeed at law.
I am quite concerned that in our democracy, the High Court has been called upon to rule on matters to do with internal party disputes far too many times. It should be noted that the courts of law are not the best avenue to resolve political differences. This insatiable appetite for politicians to use courts for each and every of their political squabble is a drain on the meager resources of our judiciary. Indeed, instead of having our judges concentrate on major issues such as crimes and other civil matters or indeed constitutional matters, boggling them down to deal with fine issues of political differences is not just right.
This trend has been encouraged by this entitlement that Zambians, especially, politicians have come to expect. Filled with corruption and stolen splendor, it is not enough that these gentlemen and ladies have so much going well for them, their lack of appreciation manifests itself in their abuse of the court process. The Zambian High Court has seen far too many political bickers – and this must stop.
On that note I must now dwell on the issues of whether Major Kachingwe can succeed or not. But in order to do so, I s should state first of all Major Kachingwe’s version of facts. First, Major Kachingwe alleges that Nevers Mumba being a member of another political party is disqualified from being President of the MMD. Second, that being the case it fell upon him, as National Secretary to act and invalidate the election of Nevers Mumba as MMD President. Third, that if he does not act as National Secretary, the MMD risks being deregistered by the Registrar of Societies. Fourth, that it is within his power to appoint an acting president and in this case, Michael Kaingu should act as president in place of the invalidated Mumba. I will argue on each of these issues raised by Kachingwe.
First, Major Kachingwe argues that Nevers Mumba is a member of another political party and as such he cannot hold membership in the MMD. This question can only be answered by fact. Is Nevers Mumba a member of another political party? Nevers Mumba says he is not a member of any other political party. To prove his point, Kachingwe retrieved records from the Registrar of Societies, which still lists Nevers Mumba as president of the Reform Party. According to Nevers, the Reform Party was disbanded or dissolved and its last returns where filed in the year 2008. In this case, then following Kachingwe’s arguments – the only evidence he has that Nevers Mumba is a member of the RP are the returns. But it has been since established in both common sense and in law that records held by the Registrar of Societies do not necessarily convey present reality. A person does not become a member of a society simply because records at the ROS states so. If indeed those records belong to 2008, they cannot be relevant to the question to be decided today.
Either by mistaken repeated practice or by rampant ignorance, the role that the ROS is playing in internal club matters is increasingly becoming more political and more confusing. Memberships, or directorships of a registered society are deemed to have changed at law, when the said society so decides. This has nothing to do with when the ROS is informed. As with a company, once a board of directors or any appointing authority, as the case may be, changes directors – right at that moment of the change – the said changes are deemed to have taken place. The Registrar plays no legal role in effecting this change. The Registrar as the name suggests only registers and does not determine the legal position of the change. So if Andeleki has records from 2008 and has not been informed that Mumba is no longer president of RP, that Andeleki has not been informed of the change does not invalidate the change.
Second, Major Kachingwe argues that since he is the National Secretary of the MMD it fell upon him to act and invalidate Mumba’s election. This thinking is seriously flawed both at law and at common sense. In order to discuss this matter it is important to note first of all the nature of the MMD as a body.
The MMD is a club. It is registered under the Societies Act. It is not a legal person. It is not a corporation. It is a body of individual members who have elected a board to run the affairs of this club. This board is known as the National Executive Committee. The NEC then delegates its powers to a National Secretary to administer the MMD. As such, policy-making power remains with the board while administrative power is delegated to the National Secretary. Given that the election of Nevers Mumba was conducted after a policy decision from the NEC it becomes impossible for a National Secretary to invalidate the policy decision made by a board. It is not within the power of an operative like Kachingwe to invalidate the actions of his board. The least he could do is to present before the NEC issues that his has seen with its decision. He cannot go it alone and act. On this matter then Kachingwe cannot succeed.
A party president like Nevers, everywhere be it in Zambia or everywhere else in the Commonwealth posses some residual power to lead and offer policy direction for his party. In other words, Nevers Mumba can give speeches and offer guidance as to how the MMD will react to national policy matters. This power can never be conceived as belonging to the National Secretary as well. For example, even with PF, Wynter Kabimba cannot invalidate Sata’s election and what Sata says offers policy direction for the PF and not what Wynter says. The same applies to Winston Chibwe in UPND. What Hichilema says serves as a policy directive while Chibwe’s words cannot be held in the same esteem. An operative like a national secretary must always defer to his principal. It is a simple principle.
What then are the consequences of Kachingwe’s action? Indeed, without a policy decision from the NEC that reconsiders the position of Nevers Mumba – Kachingwe cannot unilaterally act. He does not have that power.
Third, Kachingwe argues that if he did not act, then the MMD risked being deregistered by Andeleki. Obviously, Kachingwe’s thinking here does not smell good. Actually it stinks of corruption, unreasonableness and utter silliness. I must digress here a little bit.
Clubs and societies in Zambia, are customarily said to have “constitutions.” This is what deceives many of our people into thinking that a club constitution acts just like a republican constitution. This is obviously not the case. The law recognizes that clubs exist for a common purpose. Clubs then come up with its rules and regulations of how it will govern itself. However, it still remains with the members of the group and indeed with its board to change and modify its rules as it goes. The courts of law cannot force a club to enforce its own rules if that club changes or refuses to enforce some rules. At one time Justice Nyangulu ruled in the case of UNIP provincial party membership. Judge Nyangulu read the UNIP constitution so strictly that he invalidated the election of an Eastern Province provincial chairman because he was resident in Lusaka contrary to the UNIP constitution. On appeal, the Supreme Court reversed Nyangulu. Again this was due to a principle at law, that clubs should be able to run their affairs without subjecting them to strict legalities. Indeed, not withstanding what a club constitution says, if members or any group so gathered and recognized by the said society decide to suspend particular rules – the club is within its right to do so.
In fact, that is what happened when Mwanawasa and the NEC decided to freeze the position of Vice-President. Not withstanding that the MMD constitution provided for a position of Party Vice-President, the MMD sitting as a board decided to suspend its own constitutional provision by adhering to its president’s policy direction to not elect a vice-president. The lesson then is still valid today. Anyone who could have taken Levy and the NEC to court over the matter was not going to succeed.
In this case then, if the NEC has now decided to have an election where Mumba gets elected as MMD president, Kachingwe cannot force the NEC to follow its own rules. The law is as simple as that and there is precedence to this effect. Kachingwe could not unilaterally act.
Fourthly, Kachingwe’s actions are so obviously wrong that he even went ahead to appoint an acting MMD president. This has never been heard of. The National Secretary of any political party cannot unilaterally act to appoint who his superior is going to be. In the MMD hierarchy, just as is the case with other parties, the president is the principal, then the two vice presidents, then the chairman and his deputy and then the secretary and his deputy and so on. However, in the event that a president is invalidated, it would be the NEC to decide who should act as president. Kachingwe’s decisions are marred with an invisible hand that it would be interesting to know why he had pick on one of the veeps to be an acting president. I would not be too wrong to imagine that Kaingu was obviously unimpressed by this dubious gesture.
Fifthly, Kachingwe argues that his has power under the MMD constitution to discipline MMD members. Definitely, the MMD National Secretary does have so much power. But unfortunately, that power does not include disciplining unilaterally, his superior. Nevers Mumba is Kachingwe’s principal. He couldn’t have that power to discipline Nevers.
For his obvious amateurish behaviour, I am concerned that Kachingwe received a beating for it. All should condemn violence of any kind. And definitely seeing a grand father hauled out by cadres was a sorry sight to see. I wish him very well as he recovers from his beating. I also wish the police all the best as they apprehend the suspects and bring them before the courts of law. But for now, Kachingwe is in court and obviously; I can predict that he will receive another beating – at the hand of the law this time around. My only prayer and hope is that it does not hurt too much.
Note: This article is not intended to offer any legal opinion. It is intended for academic and political debate. For specific legal advise, Zambians are encouraged to consult members of the Zambian Bar.