Monthly Archives: August 2013

Divided We Stand: Why Squabbles in PF Are Good for Zambian Democracy

E. Munshya wa Munshya

The beauty of Zambian democracy is that no president in Zambia holds a monopoly over political players be it in the ruling party or in opposition. In fact, Zambian democracy manifests itself greatly in the personal ambition of various political players. Without personal ambition, democracy would lose its value and we could quickly slip back into a one-party or one-man participatory democracy. As such, it is the personal ambition of various political players that gives fuel and impetus to the fight for democracy anywhere.

It is in this light that the current squabbles in the Patriotic Front should be seen. These are not fights just for the sake of fights. These are fights for control, fights for power. Clearly, the fights serve notice to the current president that no one will succumb to blind loyalty to him. It also serves notice to the future of Zambia that this nation does not lack men and women who are willing to present themselves as potential leaders of this country. It is in this spirit of competition that our democracy can be mostly nurtured and matured.

That being the case, why then should these squabbles be good for Zambian democracy? Several reasons should be provided as an answer to this question. The PF squabbles provide a test for Zambia’s leader. In fact, all of Zambia’s presidents have had to deal with such squabbles at some point in their leadership. Kaunda’s post-independence honeymoon ended abruptly when several Lozi politicians revolted against his political leadership in 1965 and 1966. For his part, Kaunda did something about this and was a present player into the problems that had engulfed both his UNIP party and the nation. Kaunda provided leadership during these squabbles and he was not ambivalent towards the problems. He fired the troublemakers and started to make efforts at winning back the Lozi constituency. These efforts paid off handsomely when at the party convention of 1968, the Lozi constituency bounced back into the realms of UNIP.

In addition, towards the end of Kaunda’s rule, several squabbles broke out. The most significant was when Enoch Kavindele decided to challenge Kaunda for the presidency of UNIP in 1990. Kavindele showed some ambition. And with the power of ambition intact, the garden of democracy shall forever be watered.

Just after winning the presidency in 1991, Chiluba also faced the greatest test of his leadership. Senior members of the MMD, unsatisfied with the course he was taking, started to grumble. However, the greatest squabble that defined Chiluba’s first year in office was the one between his highest ranking cabinet members: Miyanda, Mwanawasa and Michael Sata. Particularly, vice-president Mwanawasa felt that his cabinet juniors, with clear knowledge of President Chiluba, were sidelining him.

It was not long after that, that Chiluba took control of the situation and publicly forbade his cabinet members from “laundering dirty linen in public.” However, there was no way Sata and Mwanawasa were going to work together. Their differences were irreconcilable and a few months after these public spats, vice-president Mwanawasa left cabinet citing Chiluba’s decision to side with Sata as one of the reasons.

From this saga, one thing is clear: Chiluba took control of the situation. He was also visible throughout these problems and he showed his preferences in the whole thing. Chiluba decisively took sides in the matter. These are the elements lacking in the current spats within the current ruling party. President Sata is absent from the squabbles going on in the ruling party. This behaviour from a president is highly unusual and notwithstanding any potential problems arising from division, the president’s silence might be the greatest undoing. President Sata might pay a heavy political price for this sloppiness and ambivalence.

The people of Zambia did not vote for Kabimba. Zambians did not vote for Membe. Zambians did not vote for GB Mwamba. The man in power is Michael Sata and in moments like this, Zambians expect the president to show up and lead the way. Squabbles shall always be there, but so should be the president.

Therefore, if you have squabbles without clear leadership from a president you plant seeds of ambivalence that would stifle the growth of democracy. By now, President Sata should have taken a firm stand against these public spats. He should also have fired some of these people. Both Kabimba and GBM cannot be right. President Sata should be able to tell which one of the two is causing the problems. with this knowledge, President Sata can then fire the problem maker so that they could form a political party or something to that effect. Such a faction formed out of these squabbles would help test our democracy further. For sure all these squabbles will make any one including president Sata to have no illusion that Zambians could be taken for granted.

Had there been no divisions and squabbles within the MMD or UNIP, we would not be where we are today as a democracy. Just look at the Zimbabwe situation, without personal ambition of political players shady characters like Mugabe would continue to rule way into his 100th birthday. ZANU-PF stalwarts have shown no ambition, and no initiative in trying to remove the tentacles of this dictator. Loyalty has in Zimbabwe planted seeds of a brutal dictatorship. As for Zambia, things are different. Zambian political players do not have the same amount of loyalty exhibited by their Zimbabwean counterparts. In Zambia, most cabinet ministers do not see themselves as mere servants of a sitting president. Most of them see themselves as potential successors to the president. It is this ambition that keeps democracy alive and prevents the growth of a personality cult for a president.

If there is anything we can take from GBM’s public differences with Kabimba, it is the fact that Zambia is bettered by these differences. But in order for Zambia to benefit even more, President Sata must wake up and show leadership.

What good is a cobra if it cannot bite?

The King With a Mouth: Why Nkhosi Mpezeni’s Political Outspokenness Should be Fair Game for Zambian Democracy

By E. Munshya wa Munshya

 In the run up to the recent Chipata Central by-election, Nkhosi ya ma Khosi Mpezeni actively campaigned for the PF candidate Lameck Mangani.[i] Nkhosi Mpezeni even appeared at a campaign rally addressed by President Sata where again he asked the people of Chipata to cast their votes for the Patriotic Front. As expected, the condemnation was swift from both the Electoral Commission of Zambia (ECZ) and from opposition parties. Some of the major arguments against Mpezeni’s political gestures were to the effect that the constitution forbids a chief like Mpezeni from participating in politics. This is drawn from Article 129 of the Constitution of Zambia which states that, “a person shall not, while remaining Chief, join or participate in partisan politics.” As for the ECZ, its desire to conduct free and fair elections meant that the Chipata electorate needed to be free from undue influence, especially that which comes from a traditional leader like Paramount Chief Mpezeni.[ii]

I wish to argue, that both Article 65 (3) & (4) and Article 129 in our constitution that seem to suggest that chiefs cannot express active political opinion has either been misunderstood or if not, it should be reinterpreted in ways that give effect to the constitutional liberties and rights that the chiefs, as citizens of Zambia, should enjoy. Indeed, if the interpretation of the said articles yields to the result that chiefs should have no political opinion, whatsoever, then these particular articles will deserve not our loyalty but our disdain.

With that in mind, a critical analysis of both Articles 65 and 129 yields to a clear conclusion that in fact, as the constitution stands, Mpezeni did not abrogate it by actively campaigning for the Patriotic Front. First, he did not stand for election as an MP. Second, he did not join politics, and thirdly he did not “participate in partisan politics.” Consequently, I wish to argue that as leaders, chiefs and other traditional leaders should be granted the freedom they need to freely express political opinion. This is good for democracy and indeed it is good for Zambia.

The idea that chiefs should not participate in politics is perhaps one of the greatest mistakes to come out of the 1996 amendments to the constitution of Zambia. President Frederick Chiluba and two of his closest collaborators Godfrey Miyanda and Michael Sata had pushed through constitutional amendments in 1996 whose main motive was to block some of their most vocal political opponents.

To block Kaunda, whose father descended from modern day Malawi[iii], the Chiluba-Miyanda-Sata triad decided to push an amendment that would require a presidential candidate to produce “a Zambian father and mother” (Article 34 [3] [b]). This was something that Chiluba himself could not, controversially, provide himself. It had to take the Supreme Court to correct this obvious glitch in the case of Lewanika and Others v Chiluba. Additionally, to block Mung’omba the triad pushed through another amendment. Article 34 (3) (f) would require any presidential candidate to have been domiciled in Zambia for 20 years prior to the elections. Dean Mung’omba, having lived overseas for much of the 20 years prior to the 1996 elections, could not possibly satisfy this requirement. However, to-date, the domicile rule has not been tested in court. Indeed, if Article 34 (3) (f) were to be applied then several politicians including Dr. Nevers Mumba would have been ineligible to stand in the 2001 presidential election.

However, the most relevant amendment to our argument here concerns that of the chiefs’ participation in politics. Article 129 eloquently stated that, “A person shall not, while remaining a Chief, join or participate in partisan politics.”

That Chiluba was going to stop KK from contesting in 1996 had become very apparent by the time the new constitution was being formulated. The problem for the Chiluba-Miyanda-Sata axis of power was that even if Kaunda were to be disqualified in 1996, there was a rising star within UNIP who was going to rise up to the task. As such, to ensure that UNIP would not provide any viable candidate to challenge Chiluba, Sata and Miyanda’s MMD the government decided to push through a provision that forbade chiefs from participating in politics. In 1996, Kaunda’s party vice-president was Senior Chief Inyambo Yeta, who just like KK, had become quite a robust candidate with enough clout to threaten Chiluba and his collaborators’ hold on to power. That being the case, it is clear that Chiluba’s government was not sincere in its decision to push through this amendment, especially that it was aimed at stopping Inyambo Yeta. As such, from history itself, it is clear that this article in our constitution was born out of seeds of injustice.

Each time we condemn an outspoken chief like Mpezeni from holding political views we assert this unfair chapter of our history. Each time we condemn a chief for holding and communicating political views we reenact a play designed by the political engineer himself. In fact each time we condemn Mpezeni, we play into a story that was hatched in 1996 by non other than Michael Chilufya Sata and his malevolent colleagues in the MMD.

Those who argue against traditional leaders’ participation in politics point to the leadership role that these chiefs play as leaders of their chiefdoms. However, traditional leadership should not and cannot be the barrier. In fact, upon close scrutiny this argument falls flat. According to the Chiluba-Miyanda-Sata triad, the main reason why it decided to proscribe chiefs from active politics is because “chiefs needed to be above politics as custodians of tradition”. In the present context, it would be expecting too much to expect that our chiefs should not be political when, in fact, the Chief of our State itself is a partisan demagogue. Indeed, the argument that chiefs should not proffer political opinions because they are above politics is unfair and a violation of their rights to speak and hold different and varied beliefs.

Zambia’s current Chief of State, Michael Chilufya Sata is a partisan political demagogue, why then should we expect any differently from traditional chiefs whose territorial influence is just a few thousand people at Mtenguleni or Sokontwe as the case may be? If we really meant to exempt traditional leaders from politics, on the basis that partisan politics is bad, then the president should have been the first to be exempt from partisan politics because as Chief of State he clearly does have a non-partisan role. However, that is not the case. President Sata is so partisan that one would wonder whether he could use the powers of the state to defend even a single member of the opposition if they were to be attacked by outside forces. This is the Chief of State who is daily singing about how he would deny state privileges to those people who do not vote for the likes of Lameck Mangani in Chipata, Livingstone or Kafulafuta. If it is all right for Sata to be a partisan demagogue, we do our traditional leaders great injustice by confining their psyche to a prison of conscience.

And in fact, today we could be condemning Mpezeni and tomorrow the same proscription could be used by those in power to muzzle political opinions of chiefs that are opposed to the Patriot Front and its one-party agenda. The berating of Chief Jumbe in the House of Chiefs by President Sata should send shivers to any well meaning Zambian. Surely if Jumbe is proscribed and threatened when he speaks out, it becomes apparent that the Patriotic Front agenda might soon land the whole country into oblivion. I want Mpezeni to vocalize his support for the PF, in the same manner that I do desperately want Chitimukulu or Jumbe to vocalize their disdain for this incompetent PF government.

In this regard then, we should perhaps answer a very momentous question. Given the provisions of articles 65 and 129 of the Constitution itself, does it in its current form forbid Mpezeni from supporting a candidate of his choice? The ECZ says the constitution forbids Mpezeni. I hold otherwise. It is my submission that a strict reading of this provision does not contemplate to forbid a chief from expressing political opinions. Indeed, this article forbids chiefs from being candidate in an election and from holding a partisan political position. That being the case, Zambia might have overreacted against Nkhosi Mpezeni. He was not participating in politics and neither was he standing as a candidate. Mpezeni was only openly campaigning for the party of his choice – in keeping with the sacred rights of citizenry. He holds no party position in the PF and as such, it would be too onerous on our democracy to proscribe conduct, which is within his rights and liberties.

That being the case, we should then turn to the theory, advanced by some, that chiefs might influence an election in one way or another. From the Zambian experience since independence, there is no model that has been repeatedly rejected through empirical evidence than this theory that holds that chiefs do influence their subjects politically.

From history, evidence is scanty to support the notion that subjects are easily influenced by the political persuasions of their chiefs. Perhaps a little historical analysis might help shed some light. In the January 1964 elections, the people of Barotseland went against the wishes of their king to elect Kaunda’s UNIP. UNIP got 56 seats while Nkumbula’s ANC won 9.[iv] The idea that the people of Barotseland would vote a certain way due to the political persuasions of their king was proved wrong that January. In the 1991 elections, Chief Mporokoso was the UNIP candidate for Mporokoso Constituency. His candidature did not in any way mean that his subjects would automatically vote for him. In fact, it was one of his subjects Ackim Nkole who beat Chief Mporokoso by a wide margin. As recent as 2011, it was no secret who Mwata Kazembe was supporting in Mwansabombwe. However, the subjects of the Mwata did not succumb and instead overwhelmingly voted Sata and the PF. Perhaps we should in this case include numerous examples in the Southern Province where the people of the South turn out to vote for UPND even when their chiefs’ preferred candidates and party is the MMD or the PF as the case may be.

Indeed, if there was any doubt about these fears, the recent example should settle the matter. In spite of a spirited campaign by Mpezeni, the people of Chipata voted for the MMD. Therefore, the theory that chiefs should not hold political views because they will unduly influence their subjects does not survive close scrutiny.

That being the case, it would be in the interest of our robust democracy to give back chiefs their voice and their heart. Indeed, chiefs should be free to express themselves and to make known what they believe in their hearts. A constitution therefore, that muzzles the voice of chiefs need revision.

Having established, above, that subjects do not necessarily support their chief’s preferred political candidates or parties, it would be a mistake to think that these chiefs’ personal popularity fluctuates according to these political views. This is an area that in fact might need further study. In spite of voting or supporting candidates opposed to their chiefs, most subjects nevertheless still hold their chiefs in very high esteem. This does seem to suggest a disconnection. Subjects could still respect a chief as their traditional leader and yet not let that respect spill over into any significant political influence. The examples I have given above might need a little elaboration. I explain below.

After the 1964 elections, Kaunda mistakenly thought that he could then interfere with the Litunga since the people of Barotseland had in effect rejected the Litunga’s preferred party. With a landslide in Barotseland, Kaunda never expected what was to come. Once he had perceived the Litunga’s weakness, KK wanted to pounce and humiliate Mwanawina II. Winning an election is one thing, but disrespecting a chief is quite another. Kaunda’s maneuvers backfired when within a few months he lost very influential Lozi members of his UNIP. He quipped in anger that the “Lozis had decided to align themselves to their tribe and their chief rather than the country and his UNIP.” This model has been confirmed in other chiefdoms as well. No one should perceive differing political persuasions between the chiefs and their subjects and think that they could exploit it to their political advantage. It always backfires. Even after the obvious MMD preference of the Mwata Kazembe, he has escaped unscathed from this support. There has not been any backlash for his backing of the losing MMD. He remains chief and a very well regarded and respected at it.

As for Mpezeni, he might have expressed his opinions the way he did. But the MMD should not for a moment take it to mean that they can then exploit this weakness to their political advantage. The same people who voted for MMD in Chipata would if they see Mpezeni attacked still come to his defense. Mpezeni is their king after all. And apparently, anyone who fights a chief might as well be prepared to get some backlash from his subjects, even if in actual political currency, the result could be the opposite.

In the interest of democracy Mpezeni, using slang, should be given a break. And as the idiom says we all might just need to “cut the Nkhosi ya ma Khosi some slack”. Our democracy is dependent upon free opinions expressed by its people, and these people include their royal highnesses. Both Jumbe and Mpezeni should be encouraged rather than dejected in communicating their political persuasions.

 Join me on twitter and let us continue the conversation. My twitter handle is @munshyamunshya.  

The Rule of Riffraffs: Why GBM is Right About the PF Government

 By E. Munshya wa Munshya

It is common knowledge that the battles of succession for Patriotic Front leader President Michael Sata are now being fought openly. The vultures are not trying to hide anymore. They have come out in full force, making their intentions known. They are also trying to amass as much a following as they can get. The most significant episode in all this kerfuffle has been an acknowledgment by Geoffrey Bwalya Mwamba that there are Riffraffs within the Patriotic Front that are fighting very hard to win these battles of succession.

GBM could be right. Indeed a rule by riffraffs is the greatest injustice any country can endure. However, in as much as what GBM has said is right, he has misstated where the problem is. Indeed, Zambia should be concerned not that riffraffs are trying to succeed President Sata, but rather that riffraffs are actually ruling with President Sata now. As such, our greatest concern should not be that they would rule tomorrow, but rather that these riffraffs are ruling today. The challenge for all Zambians is to ensure that these riffraffs do not destroy our country.

Intra-political battles are not uncommon. In fact, going by our history, Zambian ruling parties do face bitter intra-party battles within two years of acquiring power. In fact, the reality that the PF has not even had a splinter group in the 2 years it has been in power is itself quite unusual.

Going back to 1964, after Kenneth Kaunda’s United National Independence Party (UNIP) had obliterated its opponents in the January elections, there was some satisfaction among many UNIPists that the time had arrived for them. In fact, Kaunda’s success in Barotseland bolstered his position in negotiating for the Barotseland Agreement of May 1964. Had Kaunda or UNIP lost in Barotseland, that agreement would not have probably materialized and Barotseland could have in fact, negotiated a more politically amicable settlement than what Kaunda offered them. However, within 2 years of power, UNIP faced so many power struggles that it all came as a shock to Kaunda. The fact that some agitators were in fact, his close friends was quite unusual. UNIP faced problems with Kaunda’s legitimacy – many of his friends still felt that he was a Malawian charlatan ruling over a country that was not his. Some UNIP stalwarts were further concerned that Kaunda preferred to appoint his fellow Malawians to positions in government. The fact that he had gone ahead to appoint Reuben Kamanga as the first vice-president of an independent Zambia did not help matters either. The other problems that faced UNIP were tribal. Kaunda later learned that the “One Zambia One Nation” slogan he had slammed down the throat of Barotseland was not going to work. UNIP members of parliament and other Barotse senior UNIP leaders had chosen to side with Barotse regional interests. Within 2 years of power, the formidable UNIP was losing the plot. It had to take serious dictatorial tendencies for Kaunda to keep UNIP together. He expelled several Lozis from UNIP and one time sent his closest collaborator, Sikota Wina, to the Lozi king to warn him that the UNIP government was going to rule over Mongu and sideline him by force.

UNIP’s succession and intra-party fighting continued until 1973 when at the recommendation of the Chona Commission, Kaunda disbanded all political parties and entrenched UNIP as the sole political party. After, 1973 every one had to be a forced member of UNIP. Those who thought they could succeed Kaunda faced serious backlash. These included Simon Mwansa Kapwepwe. Kapwepwe was a non-conformist who resisted UNIP’s one-party state until his death at the hand of UNIP vigilantes in 1980.

After the Movement for Multiparty Democracy’s successful routing of UNIP in 1991, it did not take long for internal divisions to emerge within the ranks and file of the MMD. While, Chiluba had shown himself to be an effective leader, he too began developing some dictatorial tendencies inherited from his predecessor at State House. This coupled with the fact that other powerful figures also wanted a share of that power further led to the destabilization of the MMD. Months into power, figures like Mulemba and Wina were not happy with the direction the nation and the party were taking. Even vice-president Levy Mwanawasa was concerned that power was getting too concentrated on Frederick Chiluba and his closest collaborators such as Michael Sata. It was Mwanawasa’s opinion that, in actual fact, his Cabinet junior and party inferior Michael Sata was exercising more power than him. The breaking up of the MMD was inevitable.

By 1993, a faction had left MMD. Emmanuel Kasonde, a senior MMD leader had also left the MMD. The Lewanika duo – Akashambatwa and Inonge had also left. The new party to fight the MMD was almost regarded as a more sectarian and regional party. It had to take the highhandedness of MMD Secretary Michael Sata to curtail the further spread of the National Party beyond Southern and Western Provinces. When Kasonde stood on National Party ticket in Kasama in the ensuing bye-election, the message from Sata was clear – Kasonde had sold out what should be a Bemba political hegemony to Nkumbula’s National Party. Kasonde was soundly defeated in that bye-election.

The MMD had been fractured and beyond 1993 the internal squabbles had taken its toll. Just like UNIP before it, the first two years of political power led to unprecedented internal divisions and “succession battles.”

In the case of the intra-Patriotic Front battles, however, several things are quite unusual. The case of the internal divisions within the PF does differ significantly from the UNIP and UNIP cases. First, President Sata does not seem to be in effective control of his party or his government. It does appear like the succession battles are a result of this lack of control more than anything else. In the perceived lack of adequate control it is like every one is doing as they please. It is now difficult to figure out who exactly is speaking for Sata. GBM for his part has made it categorically clear, that he is speaking for President Sata and that the actions of those battling for actions are “hurtful to President Sata.” Each time succession battles emerged in our history, the president was perceived as a central player within those battles. In the case of the Patriotic Front, however, the absence of President Sata is the defining element of these battles. This is quite unusual.

The second issue with the Patriotic Front is that it is a problematic union of people united only by perceived personal interests and greed. It is quite unusual that President Sata has managed to assemble a team that could not see eye to eye on many issues before September 2011. Isn’t it surprising that President Sata has given no official acknowledgment to President Frederick Chiluba and yet the first acts of power included promoting Chiluba’s assistant to become a Permanent Secretary in the PF government. It also quite surprising that former intelligence boss Xavier Chungu is a part of the same team now, as Fred Membe and Mutembo Nchito. President Sata’s team is a team of contradictions and absurdities. Assembling a team like this whose players seem to be so philosophically dissimilar is a prerequisite for disaster. The battles for succession will only grow bigger and fiercer– there are too many vested interests and egos.

The third issue going on within this succession debacle is just how the issue of tribe is working out. Wynter Kabimba’s hopes for success within the Patriotic Front lay with him finding a multi-ethnic bloc within. GBM on the other hand does not need that. The Patriotic Front is a Bemba party already, and so GBM does not need to do as much fighting as Kabimba. That being the case, President Sata has shown Kabimba that he would side with GBM no matter what Kabimba thinks of GBM. At the same time that Kabimba was persecuting Given Lubinda, the same tactics never worked on GBM. In fact, GBM emerged even stronger after he survived the Kabimba onslaught. GBM survived because when it comes to the real issues of power, President Sata would side with a Bemba relative more than the man from Shibuyunji. This is not strange. In fact, from our history, ruling parties have had a share of their tribal politics and the PF government now would be no exception.

Since GBM has endorsed President Sata for 2016, it is quite unusual to see the kind of condemnation he has received from the likes of Kabimba and even Guy Scott. In a quite dramatic move, even Matero Member of Parliament Miles Sampa stated that there was no need to make any endorsements for 2016. I find these criticisms to be misplaced. I think GBM is only being condemned because he has started to do something that his opponents would have wanted to do themselves. GBM has beaten them to this game. Instead of condemning him, they should just join in and do it. They are mostly riffraffs after all.

Conversely, the fact that we have riffraffs in the Patriotic Front is a no brainer. It is a party of riffraffs. And that should the concern of all. If I were to be concerned about what GBM said, and as I have stated above, I am more concerned about the riffraffs ruling now, than those who are hoping to rule after President Sata. As such, the battle for Zambia should not be left to the riffraffs in PF to duck it out, each Zambian should be involved by making it clear that Zambians will vote in 2016 and the vote should just be for a party more civil and more elegant than the riffraffs we have subjected ourselves to since 2011.

In riffraffs, we do not trust.

Chibesakunda’s Spokesman Goes Offside: Why Terry Musonda’s Press Statement Does Not Make Legal Sense

By E. Munshya wa Munshya

Mr. Terry Musonda, a spokesman for the judiciary of Zambia has issued a statement in which he purports to clarify the issue that has engulfed our nation in recent days. The issue has been whether a respondent in an election petition, whose seat gets nullified, by the High Court should also, by strength of the same judgment, be barred from re-contesting that seat.

Before Mr. Musonda’s press statement, several stakeholders had given their position on the matter. The Law Association of Zambia (LAZ) had issued a statement to the effect that without a report from the High Court instructing the Electoral Commission of Zambia, the ECZ cannot on its own bar any candidate from contesting. The ECZ itself had issued similar statements stating that according s.22 read with ss 104 to 107 of the Electoral Act (2006), the elections body could only act after it receives a report from the High Court specifically addressing these matters. In the absence of such reports the ECZ cannot bar any candidate.

I had written earlier, supporting, the ECZ position. I had also indicated that indeed with regard to s.22, there are two situations under which a candidate could be barred. First, it could be through a conviction for electoral corruption and secondly, through a report from the High Court specifically made for this purpose. The Patriotic Front, however, with their Secretary General Mr. Wynter “One-Party State” Kabimba have piled even more pressure on ECZ to block these candidates from re-contesting their seats.

By raising these issues, the Patriot Front has been targeting MMD’s Dora Siliya, Mtolo Phiri and Maxwell Mwale whose seats where nullified on account of electoral corruption and other illegal activities. Indeed, all these candidates have varied degrees moral culpability with regard to the nullified elections.

The purported statement from the judiciary signed 8 August 2013, by Mr. Terry Musonda makes no legal sense at all. President of the Law Association of Zambia, Mr. James Banda, has been swift to condemn this press statement and to declare that this statement does not have the force of law and as such should be ignored. For the following reasons, I would agree with LAZ.

First, Terry Musonda has overstepped his mandate. The mandate of a spokesman for the judiciary is an honorable one. It includes the duty to run the public relations department of the judiciary. It must be mentioned here that the role of such an officer is to be the support staff to the judiciary in general and specifically to all the players within that system. The judiciary does not just comprise the Supreme Court but rather the whole hierarchy in our court system. The spokesman serves these men and women who serve in the judiciary. Among other things, Mr. Musonda should be looking at ways to interact with the public and with the media. His mandate does not include making pronouncements that border on constitutional and administrative law. In that role of spokesman for the judiciary, his role does not extend to serving as a judge or as a court.

Second, Terry Musonda has a very unbalanced view of the role of the High Court and indeed the Supreme Court with regard to elections. As a support officer, and not a principal judicial officer, Mr. Musonda should have exercised restraint not to bloat out a clear misunderstanding of the High Court’s role. Obviously, he misses a few things over the judiciary he purports to be speaking for. In our system of government the Judges play several roles. Their primary role is that of being judges or adjudicators. Their courts have inherent jurisdiction to resolve legal matters brought before them. Additionally, judges have a statutory legal role as well.

However, in addition to this judicial role, several judges do have an administrative role to play within our democracy. For example, when the Chief Justice serves as the returning officer for presidential elections, he is not doing so in his judicial capacity (constitutional law) but in his administrative capacity (administrative law). In the same way, the Electoral Act 2006 grants the High Court some administrative duties to make a report on illegal practices it finds during a petition and send that report to ECZ for further action. Terry Musonda cannot say that this administrative role has been overtaken or superseded by the judgment of the Supreme Court. When the Supreme Court hears an appeal of a petition, it is doing in its judicial capacity. However, it still remains within the administrative capacity of the High Court to make the report to the Electoral Commission of Zambia if the High Court deems so.

If Terry Musonda meant that the Supreme Court rulings did in fact, curtail the administrative role of the High Court in delivering these reports, then he is insolently mistaken. Just where he got the idea that Supreme Court ruling invalidates the power of the High Court to issue these reports is a mystery perhaps that can only be resolved by asking midnight oil he burnt when he crafted this badly written statement.

Third, Terry Musonda then goes for the overkill by stating the obvious. It is true that the Supreme Court rulings are binding on all. But it is not only the Supreme Court rulings which are binding. In fact, strictly speaking it is the rulings of the High Court which are binding unless challenged by the Supreme Court. The issue here was not that any one had been disputing the ruling of the Supreme Court. There was no such thing. Mr. Musonda dreamt up this matter and decided to include it in his statement at midnight.

A very senior member of the Zambian High Court chairs the Electoral Commission of Zambia itself. Deputy Chief Justice Ireen Mambilima as chairman of the ECZ is very aware of the nuances that Terry Musonda seems to be instigating in his press statement. The thought that a commission chaired by his boss could not understand its true mandate is indeed scandalous.

Fourth, Terry Musonda, is commenting on some issues that are subject of a court action. This does not appear too well that a non-judicial officer is making pronouncements on some matters that are before a competent judge. Musonda need reminding that while the judiciary is an institution, the legally binding declarations of the judiciary are not press statements, but rulings of a competent court. Regardless of how Musonda thinks of himself, he is not a court and in fact, the judiciary he is claiming to represent is not the court of law. There is nowhere where anyone refers to the ruling of the judiciary. We always refer to the rulings of the courts. And so Musonda is wrong to the extent that he thinks that speaking for the institution of the judiciary gives him license to comment on matters that can only be handled by the competent court.

That being the case, Mr. Terry Musonda and officers like him do have a role in our institutions. These institutions can only run effectively if support staff are raising good standards in administration. As for this particular episode, Mr. Terry Musonda should be ruled offside. Or may be we should say his boss the honorable acting retired Chief Justice has gone beyond offside and what she really needs is red card. Her game should be over.

 

(c) 2013 – Elias Munshya, LLB (Hons), MA, Mdiv., is not a member of the Zambian Bar. For specific legal opinion readers are advised to consult members of the Zambian Bar.

Leave Dora Siliya Alone – Mwefilwani

I should disagree with The Post, The ACC and the PF with the way s.22 of the Electoral Act read with ss.104 to 107 is being interpreted.

Ultimately, the advise of the Solicitor General that the PF should attempt to ask the High Court to interpret these laws seem to be appropriate. Nevertheless, I just do not foresee a situation where the High Court will rule that any nullified election on the basis of corruption or illegal activity will lead to barring of the respondent for 5 years.

Had the framers of this law contemplated direct barring, they would not have inserted the phrase that the High Court should send a “report” to the ECZ. I am of the view that, the sending of the “report” to the ECZ imposes upon the High Court to act, firstly, judiciously on this point. Secondly, it imposes a duty upon the High Court to consider the degree culpability. It should only be in those situations where the candidate is gravely culpable that the High Court should issue this “report”.

The other matter to be considered concerns the punishment contemplated by this Act. Indeed, since the punishment contemplated here will result in proscribing the participation of a person in the democratic process of our republic, it should follow that only morally culpable individuals should be barred. Participation in elections, both as candidate and as a voter is a fundamental peripheral of our democracy. It should take very exceptional circumstances such as criminal convictions or stuff like that to bar a Zambian from participating in elections.

That being the case, we should await the ruling of the honourable High Court on this matter. But I seriously doubt, whether the High Court will agree with M’membe, or with the ACC or with Hon Wynter “One Party State” Kabimba.

Leave Dora Siliya alone.

When a Cobra Spits at Crocodiles: Why President Sata Shouldn’t Fight the “Bashi Lubemba”

Elias Munshya, LLB (Hons), MA, Mdiv.

The Issue

President Michael Chilufya Sata in May 2013 used his powers as President of the Republic of Zambia to withdraw government recognition of one Henry Kanyanta Sosala as Senior Chief Mwamba of the Bemba people. According to President Sata, Sosala did “not fully undergo Bemba rituals for him to ascend to the throne of Senior Chief Mwamba.”[i] Just what made Sata to be the arbiter of Bemba rituals is an open question we attempt to ask in this article.

After some hesitation, Henry Sosala succumbed to presidential pressure and conceded to President Sata’s demands. He resigned from the Mwambaship and apologized to President Sata for the embarrassment he had caused him.[ii] On the other hand, the Bemba traditional elders were quite displeased with what they perceived to be President Sata’s interference with their traditional matters. In a meeting held with President Sata’s emissaries, Chiefs Affairs Minister Nkandu Luo and Defence Minister Godfrey Mwamba, the Council of Bemba elders (Bashi Lubemba) expressed concern at the president’s action and asked that Sata stops to interfere in traditional affairs.

President Michael Sata - The King Cobra

President Michael Chilufya Sata – The King Cobra

In August 2013, two months later, the same traditional council sat and decided to pick the same de-gazetted Henry Kanyanta Sosala as the next king of the Bemba Commonwealth. This in many ways went against President Sata’s wishes. First, the President had initially degazetted Sosala as Chief Mwamba. Second, Sosala himself had succumbed to presidential pressure and left the throne. Third, it is quite unusual that the Bemba Traditional Council would go ahead to grant supreme control to a chief who had been degazetted by the president.

That this act by the Bashi Lubemba will set of some stand off with President Sata is clear. Some reports suggest that president Sata has personal interest in the Bemba chiefdom that makes him desire to have a close relation of his to ascend to the Bemba chieftainship. In clear defiance of his wishes, the Bashi Lubemba have made perhaps one of the clearest statement to president Sata that they will not succumb to his wishes. As far as they are concerned, they have made the choice of a new paramount chief of the Bemba, and that person will have to be Sosala – the same person, President Sata degazetted.

In this battle, it is our opinion that President Sata should desist from causing any further confusion in the Bemba traditional affairs. It is also our submission that if president Sata decides to act any further against Sosala or against the Bashi Lubemba, it will be a battle he cannot win. And this is so, for several reasons.

Since Sata Is Bisa, What Stake Does He Have in The Bemba Empire?

It is important to set aside some misconceptions concerning the Bemba Empire. There has been some reports that President Sata being Bisa of Mpika cannot and should not have any interest in the Bemba traditional affairs. The truth is that in the present state of affairs, while the Bisa peoples and the Bemba peoples remain distinct, there has been incessant blurring of that distinction. As such, the argument that President Sata does not have tribal or familial interest in the Bemba affairs because he is not Bemba is an accusation not steeped in reality.

In the Bemba and Bisa ruling aristocracy, there is no distinction between a Bisa and a Bemba. We could take one example: the Chibesakunda chiefdom of Chinsali. Even if the Chibesakunda chiefdom is a chiefdom of the Bisa, Chief Chibesakunda herself is supposed to be a Bemba belonging to the Ng’ona clan. Essentially, then the Bisa people of Chinsali have a Bemba lineage ruling over them. However, with intermarriages and in fact, matrilineal system of succession the distinction that should exist between who is Bemba and who is Bisa in the royal household of Chibesakunda and indeed among their subjects has been blurred further.

The auxiliary blurring of these lines happened a few years ago when the Chibesakunda Royal Court appointed Bob Bwembya Luo, a Bemba from the Ng’andu clan to become the Chief Chibesakunda. This brought some protests from a Bisa and former parliamentarian Newton Ng’uni[iii] who in March 2007 wrote that the new Chief Chibesakunda was actually a Bemba from Abena Ng’andu and as such could not ascend to a throne reserved for Abena Ng’ona. President Mwanawasa’s government was swift in gazetting this new Chibesakunda, partly to bring stability to the chiefdom, which had not had a substantial chief for decades.

Using what happened with Chibesakunda as an example, the choice of a chief by a royal council is almost sacrosanct; courts of law do not and should not interfere with choices done by the royal council. This being the case then, those who think that a Bisa has no interest in the Bemba traditional affairs unfairly target President Sata.  We must submit however, that President Sata’s interest or interference in Bemba traditional affairs should not go to the extent of meddling with the Bashi Lubemba.

The Bashilubemba

Traditionally, the Bashi Lubemba is the Bemba Royal Council that is custodian of Bemba traditions. It also carries out the sacred duty of choosing of the successor of the Chitimukulu throne. In Bemba traditional management the second most senior throne next to the Chitimukulu is the Mwambaship. After Mwamba comes several other chiefs such as Mpepo and Nkula. It was customary that after the death of Chitimukulu it is the Mwamba that accedes to the throne.

However, it is not automatic that Mwamba becomes Chitimukulu for it is the Bashi Lubemba who appoints a Chitimukulu. A few years ago, the Bashi Lubemba in favour of a chief Mpepo bypassed a chief Mwamba. Chief Mwamba then decided to take the matter to the High Court. At first instance, Justice Anthony Nyangulu declared Mwamba to be the next Chitimukulu and chastised the Bashi Lubemba for not following customary law that made a Mwamba to be the next Chitimukulu. Mpepo appealed against this decision and the Supreme Court reversed Justice Nyangulu’s decision. In that case, the Supreme Court made some very important pronouncements with regard to customary affairs in Zambian traditions.

According to the Supreme Court, even if customary practice mostly favored a Mwamba as the automatic successor to Chitimukulu, the decision of the Bashi Lubemba was final with regard to whether Mwamba would become Chitimukulu. For Justice Silomba,

“the Bashi Lubemba have the final say over who takes over as Chief Chitimukulu and are not restricted to the system of ladder climbing and seniority.”[iv]

Essentially then, the Bashi Lubemba are the custodians and the courts of law should not replace their customary advice and input. Fundamentally, it is the Bashi Lubemba who make Bemba chiefs.

The Bashi Lubemba are important in making the Chitimukulu because they comprise both the rulers of the Chiefdom and the priests of the chiefdoms. The Bemba royal house strikes a balance between the ruling clan (Abena Ng’andu) and the ritual priests (Bakabilo). A Chitimukulu can only succeed in leading the Bembas if indeed she has the blessing of the ritualists. Royal birth does not automatically entitle one to being Chitimukulu; it must be supplemented by the approval of a clan different from the Abena Ng’andu. It is in this vein, that the decision from the Bashi Lubemba should be respected.

Should Sata Be The Bemba Ritual Expert?

President Sata’s original decision to dethrone Sosala as the Chief Mwamba was that Sosala had not followed proper ritual procedure. The problem here is that the President even if as a Bisa does have an interest in the Bemba chiefdoms, does not have expertise to advise the Bemba royalists about what that ritual procedure must be.

President Sata is president of our republic; he is unfortunately not an expert in ritual practices of the Bemba peoples, even if he belongs to the greater Bemba commonwealth. Indeed, if the Bashi Lubemba are wrong in their choice, it is not for President Sata to make that call.

In fact, there is precedence where a white Catholic priest, Bishop Joseph DuPont, acceded to the throne of Mwamba with full approval from the Bemba royal household. As far as tradition is concerned, it is what the Bashi Lubemba decide that should carry the day with regard to matters of succession. If indeed, the Bemba royal household had erred to have Sosala as Chief Mwamba, President Sata could not unilaterally decide to reverse such a resolution.

Bishop DuPont - A Catholic Priest who reigned as Chief Mwamba of the Bemba People

Bishop DuPont – A Catholic Priest who reigned as Chief Mwamba of the Bemba People

Leaving the Sosala and Mwamba saga aside, the recent decision of the Bashi Lubemba to recognise this same Sosala as Chief Chitimukulu makes things even more difficult for President Sata. Sosala has several things going well for him. First, he was the substantive Chief Mwamba chosen by the Mwamba royal household, and secondly, he has become the choice of the Bashi Lubemba to be the next Chitimukulu. With these two going for Sosala, President Sata is in a serious quandary as to what he would do next.

The Tests From the Judges

For sure, there is no dispute between any competing pretenders to the Chitimukulu throne. The choice of customary practice, going by Justice Nyangulu’s test favors Sosala and so is the supremacy of the Bashi Lubemba (going by the Supreme Court test).

This being the case, President Sata in combating the Bashi Lubemba will quickly realize that a Cobra cannot quite win if it fights the Crocodiles. Abena Ng’andu with their colleagues the Bakabilo, in the Bashi Lubemba, will shame the Bisa Cobra, again.

© 2013, E. Munshya wa Munshya, LLB (Hons), M.A, M.Div., For more information about our articles please visit http://www.eliasmunshya.org.

Dora’s Catch 22: Why ECZ is Right About S.22 of the Electoral Act 2006

By E. Munshya wa Munshya

Petitions

Dora Siliya

After Zambia’s elections of 2011, the party that won the elections, the Patriotic Front (PF) decided to petition dozens of seats won by the opposition parties. Among other reasons for so petitioning, the PF contended that these particular seats had been won either fraudulently or corruptly. Among the seats petitioned are those of close associates of former president Dr. Rupiah Banda who had lost the presidential election to the Patriotic Front’s Michael Chilufya Sata.

The Supreme Court of Zambia nullified the election of Dora Siliya for Petauke, Mutolo Phiri for Chipata Central, and Maxwell Mwale for Malambo. Several other seats were also nullified triggering by-elections in all these constituencies. Some sections of Zambian society have held rather than good will, the PF triggered these by-elections so that they could get the needed majority in parliament to have Zambia revert back to the dark ages of the UNIP dictatorship.

There has been debate about whether under the current electoral laws; a candidate whose election is nullified can stand for re-election in the nullified seat. This question became even more heated after the ruling Patriotic Front accused the Electoral Commission of Zambia of flouting electoral regulations by allowing the nullified candidates to recontest their seats. In addition to the ruling party, a local civil society organization, the Transparency International also asked the ECZ to bar the likes of Dora Siliya, Maxwell Mwale or even Mutolo Banda from re-contesting their seats since the Supreme Court had nullified their elections.

At the heart of this dilemma is the provision from Section 22 (b) of the Electoral Act of 2006 which states, inter alia, that:

Any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the High Court upon the trial of an election petition under this Act shall not be qualified for election as a member of the National Assembly for a period of five years from the date of the conviction or of the report, as the case may be.

Obviously, the Patriotic Front is interpreting this provision to mean that people like Dora Siliya whose election to parliament were nullified by the courts of law should be barred from re-contesting. The Electoral Commission of Zambia (ECZ) on the other in a statement released 1 August 2013, has argued that the ECZ can only act to bar candidate if the High Court provides to the ECZ a report pursuant to Section 104 of the Electoral Act 2006. Section 104 (6) and (7) of the Electoral Act 2006 states as follows:

(6) Where it appears to the High Court upon the trial of an election petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election petition relates, the High Court shall, at the conclusion of the proceedings, prepare a report stating—

(a) The evidence given in the proceedings in respect of the corrupt practice or illegal practice;

(b) The names and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the Court, committed:

Provided that the Court shall not state the name of any person under this paragraph unless the person has been given an opportunity of appearing before the Court and of showing cause why that person’s name should not be so stated.

 (7) The Registrar shall deliver a copy of every report prepared by the High Court under subsection (6) to—

(a) the Commission; and

(b) the Director of Public Prosecutions.

(8) The Commission shall, as soon as it receives the report under subsection (7), instruct an officer to prosecute any person stated in the report.

It is my opinion that the ECZ’s interpretation of section 22 using section 104 is correct at law. As such, for reasons presented below, I would hold that it was never the intention of Zambia’s electoral laws to disqualify any candidate from re-contesting a nullified seat without further instruction and deliberation from the High Court.

The Civil and Criminal Law Distinction

 To clear the confusion, we must first begin by differentiating between the goals of two different aspects of legal suits tenable in the Zambian judicial system: a civil suit or a criminal suit. Each of these come with different remedies and in fact, has different goals. As such, in order to understand the desired outcome of any legal suit, it would be important to first understand its categorization at law. A criminal offence is usually aimed at punishing an offender and is commenced by the state against an offender. An interested party who takes another party to court to seek specific or general remedies on the other hand initiates a civil case. In the context of an electoral petition, a petitioner asks the court to nullify the election of a respondent. The parties to an electoral petition are private individuals contesting competing rights to a seat in parliament.

Criminal law on the other hand has different goals in mind. It seeks to punish offenders for specific offences that have been proscribed through the Penal Code and other laws. According to the constitution of Zambia, the Director of Public Prosecutions is the primary officer that prosecutes criminal offences in Zambia.

That being the case, it is clear that Section 102 (3) of the Electoral Act of 2006 specifically mandates the High Court to “exercise such powers within its civil jurisdiction as it may deem appropriate.” This provision, therefore, shows that the main element of an electoral petition is civil rather than criminal.

Having established that electoral petitions are primarily civil suits, the next issue to deal with concerns remedies. In most cases, a petitioner asks the High Court to nullify an election based on several grounds. The petitioner primarily contends that the election was not free and fair. Based on the evidence she provides, she can then have the court rule in her favour and nullify the election of a respondent.

This then brings us to the question of the standard of proof. In a civil case, the standard of proof needed to prove a case is a balance of probability. This means that it is more likely than not that evidence rendered proves a particular point. However, the Zambian Supreme Court has raised the standard of proof needed in electoral petitions. In the case of Lewanika and Others v Chiluba and in the newer case of Sikota v. Mabenga the Supreme Court ruled that the appropriate standard for proof in electoral petitions should be slightly higher than civil case’ balance of probabilities but must be below the criminal threshold of “proof beyond reasonable doubt.”

Indeed, there is not standard higher than “proof beyond reasonable doubt.” This standard is used in criminal proceedings. The reason for a higher standard in criminal proceedings is that no innocent person should be punished for a crime they never committed and that it is in the interest of justice that the State which has almost unlimited resources should be able to gather all resources necessary to prove its case.

Having dealt with some background information above, I must now turn to the question of whether the drafters of the Electoral Act intended to disqualify candidates from re-contesting their seats. To do so we must focus on the actual text of the Electoral Act.

According to section 22 of the Electoral Act there are several categories of people and situations that would lead to a candidate being unqualified.

Criminal Conviction Bars A Candidate

 First, any person who is convicted of any corrupt practice or illegal practice shall not be qualified. Without further complications, this provision does seem to contemplate a clear criminal procedure. If a person is convicted of any corrupt practice or illegal practice, they are then disqualified. The term conviction is used only in the context of criminal proceedings. It is ridiculous to say that a person was “convicted” in a purely civil matter. The correct term to use in civil cases is “liability” or terms to that effect.

Specifically, when it comes to bribery and corruption, it is the DPP and the Anti-Corruption Commission who can bring a bribery or corruption case against a particular candidate. The ACC Act of 2012 (s.35 (1)) provides thus:

 (1) The Commission has jurisdiction to investigate and prosecute any offence of bribery prescribed under section seventy-nine of the Electoral Act, 2006.

It is Section 87 of the Electoral Act 2006 that explains further punishment for those convicted of an “illegal practice”. The guilty shall be liable on, conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both.

Again to reiterate here, once a candidate is convicted not only would they not qualify to stand for re-election, they would also face jail time. Just as stated above, it is important to differentiate what is going on in a criminal trial and what obtains in a civil case. It is impossible to have a criminal trial within the context of an electoral petition. What an electoral petition can do is to make specific recommendations and observations upon which the DPP may make independent Judgement of whether he could proceed to charge the offender with criminal offences.

“Report” From the High Court Can Bar A Candidate

The second category of people disqualified are those who are “reported guilty” of any corrupt practice or illegal practice by the High Court upon the trial of an election. The first limb of section 22 is quite clear; any one convicted is not qualified. In the second limb however, very interesting words are used. For a person to qualify under this limb, they must have been “reported guilty”. The first one was to do with conviction, while the second limb deals with “report.” This report is only explained in Section 104 of the Electoral Act of 2006 as being the report that the High Court makes to the ECZ. And so, it is expected that if during the electoral petition, the High Court find reasons why a respondent should be “reported”, the High Court will then send the ECZ evidence and transcripts and report such a candidate. The consequence of a report triggers either a criminal prosecution by the DPP or a disqualification from contesting further elections.

The challenge, the “report” provides is that, it emanates from a civil case – that is it emanates from an electoral petition and yet has consequences similar to criminal convictions for corruption. In the case of Sikota v Mabenga, the court held that even if the case was of a civil nature, the respondent’s actions where so outrageous that they bordered on criminality. In its Judgement, the Supreme Court even went to the extent of recommending the prosecution of Mr. Michael Mabenga for corruption and theft of CDF funds. It is this kind of clear Judgement, which in my opinion triggers the application of S.104 (7) of the Electoral Act. Without categorical report about corruption from the High Court, it would be difficult for the Electoral Commission of Zambia to act and bar a candidate.

Conclusion

Without clear guidelines from the High Court that a candidate did in fact participate in some form of corruption or bribery of theft, it would be unfair to disqualify them from contesting their vacant seats. On the other hand, if a candidate has been convicted of corruption or stuff like that, then they must not stand as candidates. As for Dora Siliya, Michael Sata and Wynter Kabimba should prepare to meet her in Petauke as their “catch 22” has failed.

(c) 2013, Elias Munshya wa Munshya is not a member of the Zambian Bar. Specific legal advise should be sought from members of the bar. This article is for educational purposes only and does not intend to convey legal advise.