Monthly Archives: September 2013

Zambia and The Living Tree of Democracy

 By Munshya wa Munshya

 Elias MunshyaNothing shows the character of a president, or any person for that matter, than the battles she chooses to fight. The saying that action speaks louder than words becomes even more real for a nation, in the type of undertakings that a president decides to employ. There can be no doubt that both action and inaction could show us without doubt where a president’s vision for the country lay. This is even more serious in our country. Faced with bitter division within his own ruling party, the President has decided to cast a blind eye on those divisions and instead, has concentrated on victimizing citizens. These citizens’ only crime is the decision to stand up for the country and exercise their democratic liberties. Just the other day, President Sata, to the embarrassment of our intelligence community, issued a written statement in which he claimed that the intelligence has infiltrated Hakainde Hichilema. We may never know the extent of that infiltration, but following the Chief Jumbe precedence, it could include “sikiriti ku bed.” This is Michael Sata’s priority and we get it.

In President Sata’s threatening phone call to Joy FM, we are further introduced to the priorities of this president. In that phone call we are shown what this president regards as national security priorities: the political death of Nevers Mumba. The fighting between GBM and Kabimba by far poses the greatest threat to our national security and to our democracy. GBM is no ordinary character; he is the country’s minister of defense. He is the third most powerful of cabinet peers. His public spats with Kabimba cannot be trivial matters. In fact, Nevers Mumba’s vociferations on radio pale in comparison with the security implications brought by the “cipaye no lamwina” going on in the PF. And the president’s inaction over GBM and Kabimba while making the greatest noise against HH and Mumba goes to just show that the cobra has marked its victims.

That being the case, the older I grow, the more I realize that us mortals may never know what transpires to champions of democracy once they acquire power and begin breathing the air supplied only to the chosen five at Plot One. To what could we attribute the complete transformation that our presidents go through immediately after they are ushered into the Nkwazi House? What happened to KK after independence? Which virus eats up the democratic decency of people like Dr. Frederick Chiluba who after fathering our democracy ten years later wanted to suffocate it? And now in 2013, when our nation is confronted with the infighting within the ruling Patriotic Front, our president decides to look the other way and to bury his head in the sands of Lealui hoping that after 90 days, it will all go away. Instead of confronting the evil in PF, the president decides to attack democracy.

However, once a people have had the opportunity to get their taste buds tantalized by the beautiful aroma coming from the fruits yielded by a tree of democracy, they do everything they can to defend that tree. The fabric of our republic changed fundamentally in 1991. The people of Zambia resolved to replace a dictatorship that once was styled “one-party participatory democracy” with a democracy allowing plural politics and with it plural views and opinions. After having tasted this beauty and after having touched this greatness, Zambians are willing to defend this democracy to the bitter end. Pafwa abantu, pashala bantu.

As stated above, in 2001 Chiluba got almost corrupted by the same dictatorship he had risen to fight. It is the ordinary Zambians who stopped what could have been a resurgence of tyranny. In that year, Zambians from all walks of life came together and demanded that Chiluba and his lieutenant Michael Sata stop the ridiculous bid to run for a third term. Amazingly, at a rally in Lusaka even the vice-president of our nation joined expelled Members of Parliament and members of the civil society to demand that Chiluba does not asphyxiate democracy.

In 2011, again the people of Zambia exercised their freedoms. Lozis, Bembas, urban dwellers as well as the general workers in our country came together and formed perhaps one of the most significant political coalitions to usher in the presidency of one Michael Chilufya Sata. Through the “Don’t Kubeba” coalition Sata became only the second to Chiluba to beat an incumbent. This is no small feat. It is a significant event. But the true heroes of the 2011 story are ordinary Zambians, both the educated elite of Omelo Mumba Road and the poor street kids that sleep under the pavements of Rhodes Park. Ordinary Zambians put a stop to what they perceived to have been an unproductive presidency of Rupiah Banda.

However, like many governments before it, a bout of political dementia and historical psychosis has suddenly afflicted the PF government. Frequently, gentlemen like Wynter Kabimba are now standing on a podium to proclaim, quite thoughtlessly I must say, that the PF is going to rule for decades to come, for a 100 years minimum. Kabimba has even got the bravery, people of Zambia, to claim that your country is now on its way back to a one-party system. I should be the last person to fault the honorable comrade for so thinking. However, I should be humble to acknowledge that many things are unlawful, but political silliness is not one of them. Quite to the shock and awe of the honorable comrade it is only the sober people of Kafulafuta and Msanzala who had to remind him that his wishes were just that: wishes of a very capable gentleman intoxicated by the Kachasu of political power. And indeed, due to the tyrannical nature of the PF party itself, the cadres are making the honorable comrade’s continued stay as Secretary untenable. Kabimba has lost in both ways: the people of Katete rejected his philosophy and now even his own cadres have armed themselves with pangas against him. It is difficult to imagine how quickly 100 years in power can change to an ultimatum to leave the Patriotic Front.

Kabimba aside, it should be concerning correspondingly that President Sata last week called Joy FM radio to ask the presenter to cancel a radio at which opposition leader Nevers Mumba was guest. His Excellency too needs to be reminded. Zambians have drunk the cup of democracy. They have found it to be too sweet. And having found this democracy too sweet, they are refusing to let go. They are saying quite eloquently, democracy yali lowa!

Nevers Mumba might have used many colorful words he wanted to use during that radio broadcast. But that is the beauty of our democracy: to be able to hold Michael Sata accountable and let the people of Zambia know that some of the promises Sata made were, borrowing from Zagaze and Pilato, “bufi”. And of course, our people do not go begging at State House for a handout of freedoms. If Sata wants to take this path, then he will have to top-up on talk time and get ready to make many calls: Zambia’s tree of democracy is alive and well.

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

Now that the Chitimukulu issue has resurfaced, a recap of what I wrote in August!

Elias Munshya, LLM, MBA, MDIV

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…

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Justice on Contract: Judges, the President & the Future of our Democracy

 By E. Munshya wa Munshya

Ours has been a robust judiciary. Ours has been a robust commitment to the rule of law. Had it not been for the gallantry of our judges, we could not have achieved the democratic strands we are enjoying today. Beginning with the time of the one-party state, judges sporadically stood up to Kaunda. For example, judges stopped KK when he fired a teacher without recourse to the Teaching Service Commission. It was clear in that 1973 ruling that Kaunda may have been chief of our state, but that did not give him license to be the chief employer of civil servants. Today, our jurisprudence continues to grow from this seminal ruling. Based on this ruling, the Lusaka High Court recently ruled President Sata offside when he purported to “retire” policemen who had not otherwise reached retirement age. Sata, simply, did not have the power to do so.

At the time that Zambia was transitioning back to plural politics it is judges who helped the new democratic movement get the protection it needed to grow. Again, after attaining our plural democracy, it is judges again who continued to play a huge role as guardians of the rule of law. When Chiluba and his cohorts – Michael Sata and Miyanda to be exact – found great solace in the barbaric use of the Public Order Act, it is gallant judges who held that some sections of this law should be ruled as unconstitutional (see cases of Mulundika & Resident Doctors). Further, when Chiluba, Sata and Miyanda amended the 1996 constitution to exclude the likes of Kaunda based on the “parentage” clause; again our Supreme Court came back and provided a more sensible interpretation of what it meant to have Zambian parents (see Lewanika & Others v. Chiluba). It has been my position, following guidance from the Lewanika case, that even a Zambian like Guy Scott does satisfy the requirements of the “parentage clause”.

Perhaps one of the most far reaching demonstrations of judicial independence happened when Deputy Chief Justice Ireen Mambilima held, in the case of Miyanda v Attorney General, that the President of Zambia is not above the law, but rather is a subject of our constitution. According to Mambilima, the Public Order Act itself has placed the president within statutory contemplation. Justice Kabuka relied on this ruling in the case of Kabimba v. Kachingwe (MMD).

That being the case, there has been some concerns, with whether the judges are independent enough. During the Rupiah Banda presidency, it is John Sangwa SC who took government to court alleging that Ernest Sakala should be relieved of his duty as Chief Justice since he had reached retirement age. Justice Mutuna when handling the matter acknowledged that indeed Sakala had reached retirement age, but nevertheless the President as Chief of State still had reserve power to keep Sakala in office. At that time Sakala was serving under a contract from President Banda.

In 2013, the same questions raised by Sangwa have now resurfaced. But these questions are further protracted by the fact that over half of the current Supreme Court is passed retirement age and is therefore on serving on employment contracts amenable only to the president of our republic. These contracts should be a cause of concern to the extent that they might appear to undermine judicial independence.

Perhaps, all this could have gone on unnoticed had it not been for the case of Mutuna & Others. What is remarkable, one observer noted, is that four of the majority judges in the case of Mutuna are all on contract. The three judges, Muyovwe, Mwanamwambwa & Chibomba, who dissented are not on contract and are below the retirement age. Could the Supreme Court have ruled any differently had those judges not been on contract? Did the contracts play a role in making Wanki, Mumba, Chibesakunda, and Phiri rule for the State? As I have stated previously in this column, the majority’s holding that “President Sata is the authority on everything”, is perhaps one of the most dubious doctrines to ever come out of our Supreme Court in recent times.

Indeed, borrowing from what I wrote last week, only a restraint of law can keep a peeping tom from peering through Jumbe’s bedroom. The proposition that a president can listen into people’s moans and shrieks should be a concern to all. It is the law and the judges who can put such abuse of power under control. However, to a large extent, our judges have been exemplary and the holding in the Mutuna case should not in any way reflect on all judges. Mutuna case was obviously badly decided and it remains upon the next court to perhaps find a way to reverse that ruling.

For now, perhaps, the president can continue being DJ and listen more to others’ private affairs. He is the authority on “everything” after all. But we should make no mistake; there is no end to what human debauchery can lead to. Today it is Jumbe and who knows the next person to be on radio Plot One? Indeed, while in the bedroom, Zambians better begin to learn how to smile because they could just be on red brick camera.

Contracts for judges are problematic because they erode at least three fundamental elements of judicial independence: security of tenure, institutional independence and financial security. Each of these is discussed in turn. First, Judges should have security of tenure. A judge should be so secure in the job as to know that he will still have his job tomorrow regardless of what he holds in a ruling. The fact that 4 judges in our Supreme Court have no security of tenure and their contract could be terminated at will is a concern.

Second, institutional independence means that the judiciary and indeed the judges should be free from administrative interference from the other organs of state. It is quite ironic that the chief administrator of the judiciary in our current constitution still remains the president. He is the one who even appoints acting Chief Justices or an acting deputy chief justice for administrative convenience. Quite ironic that when both Sakala and Chirwa were away from Zambia for about 2 weeks, President Sata appointed justices to act in these capacities. Nothing demonstrates lack of independence than the fact that even in these simple administrative duties it is the president who has to find temporary principals. Zambia has been talking about institutional independence for a long time, it is perhaps time to act on this talk and let the judiciary run its own affairs. Speaker Matibini runs parliament without recourse to Sata, why should it be any different for the judiciary?

The last element concerns money. Judges should not only have security of tenure, they should also have security of “salary”. To me this does not really simply deal with how much they get, but rather that the State should not interfere with whatever ngwee that a judge is entitled to. As such, reports that President Sata unilaterally froze a little pay that Justice Denis Chirwa earns should be a concern to all. Such actions send shivers across the judges. Judges are human and they have mouths to feed too. We should give them their fair pay.  Sata should forthwith desist from such crass interference.

Leaving all the disputes aside with the eligibility of current acting Chief Justice. I believe that with security of tenure, financial security and institutional independence, we could be on our way to make our judiciary stronger and our Zambia a better republic.

Nevers Sekwila Mumba, Insincerely Yours: My Open Letter to the MMD President

Nevers Sekwila MumbaDear Nevers Sekwila Mumba:

I must register my disappointment at the manner you Dr. Mumba have behaved towards His Excellency the President of our Republic, His Excellency Mr. Michael Chilufya Sata, SC and Supreme Commander of our armed forces. Dr. Mumba what even enrages me more is the fact that even after His Excellency called your host on Joy FM to cancel the show, you defied him and went on with your program. That was seriously so wrong. I should write this letter to you with a very heavy heart.

But before I deal with the substantive issues you discussed on that radio show, let me first address the fact that our president even called you in the first place. You see, you wasted the president’s time. Don’t you know that His Excellency’s time is very precious? In fact, you cost the taxpayers a lot of money by letting His Excellency even make the call to Joy FM. Mr. President is a very busy man. He should not be subjected to acting for nonentities such as yourself. You see, by phoning Joy FM the president missed out on listening into some bedrooms across this country. This is exactly what he had told Chief Jumbe during the opening of the House of Chiefs. Mr. President said that he is such a powerful person who can and does listen to everything Jumbe whispers including the shrieks in his bedroom. Now with all these responsibilities, Dr. Mumba you decided to act irresponsibly so that the president would waste his valued time on a phone call to you.

That phone call also wasted his time that he could have spent in the red brick laboratory reviewing the DNA of some of your opposition colleagues. You see just like he had mentioned in Chipata, the president has data that Hichilema and the Reverend Father Bwalya are “abana ba mufigololo”. You know how he knew that? It is because, he is supposed to spend time, reviewing DNA that proves paternity. And so if you yourself, think that you are clever, the red brick boys have already taken a sample and very soon an announcement will be made in Malambo that you too perhaps are just like Bwalya or Hichilema. Now your actions that day, took the president away from working on this important national assignment.

Please Dr. Mumba never do this again. Never should you ever let the president waste his time like this. That day, he missed his duties in the red brick laboratory and of course in the red brick studio.

After having dealt with why you are such a time waster. I must now deal with the substantive issues you raised in that Joy FM interview. In fact, everything you said in that radio has been restated in the letter you sent to our president. Dr. Mumba you should know that the President is the authority on everything. This is what his relative Bo Phillis Lombe said about him. If you read the judgment she rendered in the case of Bo Mutuna and his friends, she stated very clearly that President Sata is the authority on everything. She also stated that Micheal Sata has information and receives information on everything and in fact, everybody. Do you know what this means?

I don’t even for a moment expect you to know what this means.  But let me help you understand it. It means that President Sata is not only the commander in chief of our soldiers, but he is also the commander in chief of mathematics, calculus, statistics and arithmetic. In fact, he is the authority on time, days and hours. It means that everything has no meaning except that which he assigns to it.

You are complaining about the constitution. You see, president Sata, just like he had promised, has delivered a people driven constitution within 90 days. That constitution is all over the country. In fact, it has been translated in all the mother tongues of Zambia. I know you have not seen it because you allegedly suffer from a serious bout of psychosis. On the other hand, the President does not suffer from any of these big diseases you allegedly lumped on him. He has evidence of this constitution, which was delivered within 90 days!

The president has also increased salaries of civil servants by 300% or is it 200%. How dare, do you say that our president is a liar? The civil servants went to the bank and, in fact, found that their salaries increased by about 10pin or is it 30pin. But you see, this does not mean that the president is a liar, all it means is that 300% changes meaning when it is touched by the commander in chief of arithmetic. And so civil servants are now smiling with this unprecedented increase in their salaries. I have heard that some nurses want to protest. But these nurses do not know how to count. If they knew how to count, or if they cared to learn it from the Chief Statistician himself, they would have come to the same conclusion that a salary increase of 300% would only add 10 pin or 30 pin to their previous salaries. Is the president a liar? I would say no Dr. Mumba. The president is just a good magician.

Dr. Mumba you accuse the president of having built nothing. Are you not seeing him every day commissioning already finished roads within 90 days? Go to Chawama, to Kuku and to Chinsali. The roads are there. The roads in fact, have been built in 90 days. With all this evidence only psychosis can make a person think otherwise. Go to all these places and you will find the finished roads, paved and sparkling clean as a result of the hard work of His Majesty, (ooops His Excellency). It really does not matter that in fact, none of these roads have been done in actual fact, and it does not matter that actually most of these roads were built and planned for by Rupiah Banda. You see again, President Sata is the authority on everything. If you want to see a new road go to him and he will grace you with the ability to see. Honestly, not even his ministers are convinced of all this development. This is why the other day he called them together and lambasted them for not seeing the good roads he alone has built for them. Quite unsurprisingly, it is only after they went to State House after that meeting, that suddenly, the brave ministers realized that in fact, yes, the nation is prospering again. I think you too, Mr. former vice-president need to visit State House and then you will see!

About the Euro Bond? You see, Dr. Mumba, the economic prowess of His Excellency is being demonstrated by his ability to get us deep into kaloba. Actually forget about that debt hole you helped us recover from when you were vice-president. President Sata has a marvelous plan for us. He will dig us deep into debt with the shylocks of New York. Imagine, this has never happened before. When his government wanted to ask for some kaloba in New York, the investors from there in fact quadrupled the amount of kaloba we could get. We went for $750,000,000 but they were willing to give us $7,000,000,000 of kaloba. Count the zeros. These zeros are dollars, American dollar un-rebased. This Dr. Mumba is good economic mismanagement. How then do you say President Sata is a leader of confusion? Is this confusion? Does confusion look like this? In fact, for your own misinformation, some of this kaloba has already been used up to pay civil servants the promised 300% increment, which in actual fact is only a 30pin increment. This is not foolishness as you supposed, it is known as good economic mis-management.

Lastly, but not least, you should know something. His Majesty (oops again, His Excellency) has a great plan for Zambia. He has imported free labour from China. He has installed riffraffs in his party and he has in fact, changed your slogan from Zambia shall be saved to something to the effect that Zambia shall be shamed.

After writing you this letter, I could not differentiate reality from fantasy. And so I had to ask the Drug Enforcement Commission (DEC) to give me some of that stuff they had stolen from Brebner Changala’s bedroom. May be Vermox will help me.

Insincerely Yours,

Munshya wa Munshya

Has the King Cobra Become An Ostrich?

By E. Munshya wa Munshya

 We are seeing the portrait of a very active and engaging leader from State House, a cobra in his own right. President Sata is appearing in more public events. He is seen commissioning or not commissioning roads, and he is being seen in public berating his juniors for what he perceives to be mediocre work.

At State House during the famous swearing in ceremonies, President Sata does appear to be a very enchanting participant. He is seen and heard rebuking those with baldheads. It is still debatable whether the baldhead phenomenon is just because he is naturally a funny character or there is something seriously wrong with those men spotting bald. In many instances, he would interrupt the solemn ceremonies of a swearing in service to talk about the status of grass at State House. During the many campaign stops he has made since assuming office, he is heard fully engaging with voters and appealing to them to vote for his party – the PF – if those areas are to taste any “aromatic aldehyde” of development.

He has made several changes to his own team. Permanent Secretaries are being moved and transferred frequently. The latest of these transfers, of course, being the resettlement of Emmanuel Mwamba from Barotseland to the Ministry of Information and Broadcasting. To Barotseland, President Sata has sent Amos Malupenga as permanent secretary. This should make for interesting times. Malupenga, the man of holograms, has now been hollowed to Barotseland.

Indeed, the president does seem to be actively engaged with many issues: baldheads, bad roads, depraved grass at State House, Chief Jumbe’s bedroom and many other issues. One area, however, that has seen a dearth in silence from the Head of State does seem to be the events happening in his own party – the Patriotic Front.

Obviously, President Sata does read widely and he listens very closely. As recent as just a few months ago, he told Chief Jumbe that he listens in on his conversations including those happening in his bedroom. No one would doubt that and neither should we have any reason to doubt that President Sata can and in fact does listen in. Whatever that means, should be left to one’s imagination. We are not psychics and so we should be satisfied that we may never know what His Excellency actually meant by that. Suffice to mention here that listening into private bedrooms used to be very bad manners at one time in our upbringing. But when you are “the authority on everything” (see the Mutuna & Others case), it seems you do have the right to do so. Being president comes with benefits including that of being likened to a peeping tom.

That being the case then, there seems to be a disconnect within President Sata’s own party. Why is it that this president who is so actively engaging with everything around him has failed to mention, not even once, the emergence of cracks and the house that is quickly falling apart in his own backyard? It should be ironic that at the same time that he is noticing the browning of grass at State House he is not equally paying attention to the browning of fists at Northmead, happening right under his nose. How can one explain this ambivalence? Well let us try to provide an analysis.

First, it could be that while we think President Sata is actively engaging, he might not be. May be he just does not see the fights that are going on. But this theory is almost impossible to fathom. The same day that he went to commission a road at Kasisi, he could tell that the road he had been led to had, in fact, been tarred already. To this, he asked his longest serving Member of Parliament Yamfwa Mukanga, “why did you call me to commission a road which is already done?” On that same day, there was a battle brewing at Northmead between supporters of GBM and those of Wynter “one party state” Kabimba. I do not believe the President has not seen this. He is very aware of these problems. This then leads us to the second question, if the president is aware of these issues, why then hasn’t he taken action?

Divisions in ruling parties are not new and neither are they unique to the Patriotic Front. We have tried to analyse in this column, that all presidents have faced a test of severe divisions and factions within their parties. These problems have emerged mostly in a few months after assuming power. Divisions and all these fights are not strange. Politicians are fighting all the time. Chiluba and his cabinet started fighting within weeks. In fact, it is fights that led to Chiluba’s first vice-president to quit in protest against the bitter differences that had emerged between him and Michael Sata, who at that time was Chiluba’s closest collaborator.

Rupiah Banda equally faced a mutiny within the MMD. Mpombo and Mulongoti started fighting within the party. Kenneth Kaunda too faced squabbles within his first years in power. Simon Mwansa Kapwepwe and other Bemba-speaking hegemonists could not stomach the anti-Bemba politics that Kaunda had developed shortly after independence.

In all these differences and fights and squabbles, there has been clear precedence. That is the concerned presidents have played an active role in directing the outcomes of these fights. Kaunda identified the squabbles early and settled with the Bemba-faction. Chiluba showed his preferences and Mwanawasa was left with no option but to resign. Rupiah Banda had made it clear that he was not in favour of either Mpombo or Mulongoti. These presidents did not bury their heads in the sand. They showed up when conflict came up and Zambia was clear about where they stood. Again, these presidents might have taken wrong decisions. They might have even backed the wrong horses. But hey, at least they showed up and showed leadership!

In 2013, however, in the face of squabbles, the ever-engaging cobra does seem to have become desensitized and ambivalent to the problems eating the party and consequently the nation. President Sata has said nothing, absolutely nothing about these conflicts. Everyone does seem to be speaking for him – except himself. GBM is saying that he is carrying out a message from President Sata, and so is Kabimba claiming that he is running the party in the name of the President. Both Kabimba and GBM cannot be right. One is obviously lying. But in the event that both of these gentlemen give us conflicting messages about the direction of the Patriotic Front, it is incumbent upon the president himself to show up, show up strong and tell the nation where he stands.

President Sata is nicknamed king cobra. A king cobra can bite multiple times and in multiple ways. No testing times require the king to show up than now. The Patriotic Front has faced no crisis requiring its cobra to bite, and bite harder, than now. This silence would be excusable only in one instance. That is if the cobra has in fact mutated into an ostrich. It is the ostrich that has the reputation and the myth of burying its head in the sand, while the world around goes to Northmead for a fight of fists.

But this should not be characteristic of our cobra, our Michael Sata and our president. He must speak and speak now to redeem the image of his party and through that redeem the pride of our nation. Otherwise, the myth of the ostrich will grow bigger while the reality of the cobra is decreasing by the day.

What good is the cobra if it cannot bite?

Kuya Bebele: Why Lombe Chibesakunda should Vacate the Office of Chief Justice

 By Munshya wa Munshya

That acting Chief Justice of Zambia, Lombe Chibesakunda should resign has been clearly enunciated by very distinguished bodies and reputed personalities in Zambia.  In fact, no other issue has captured considerable coverage in the Zambian media, in the past weeks, than this Chibesakunda saga. Civil society, as well as the Law Association of Zambia, has made it articulately clear that it is a constitutional anomaly to have her ladyship continue to serve as Chief Justice. Since democracy recurrently requires a multiplicity of voices, I wish to add to this debate. If Justice Chibesakunda wishes to save a little bit of her self-respect, she must in good faith resign forthwith and save the nation, the president, and our parliament from further shame, ridicule and embarrassment.

Kuya bebele. I do believe that Justice Chibesakunda should go.

The basic principle of separation of powers within our system of government does envision three arms of government that together form the basic institutions of our democracy. To foster this separation of powers, the head of the judiciary, a chief justice, is supposed to be substantively appointed by the president and this appointment should then be subject to parliamentary approval. It is article 93 (1) of the constitution that states thus: “The Chief Justice and Deputy Chief Justice shall, subject to ratification by the National Assembly, be appointed by the President.” That being the case, no one can take up the position of Chief Justice without parliamentary ratification.

In the case of Justice Chibesakunda, she has not been ratified by parliament and on that basis alone; she must recuse herself from further exercising the functions of that office. Indeed, the process of ratification itself does impose upon our system specific procedures that must be met before one could assume the role of chief justice.

There has been argument by some, that regardless of what the law says, the president of the republic of Zambia still retains the power to appoint anyone to act as chief justice. This theory is both right and wrong. I must return to this later in the article. It is true that the president of Zambia, as chief of state, does have some discretionary power as the reserve of all state power (Article 33 of the Constitution of Zambia). This, however, does not mean that the president is above law and neither does it mean that the president could ignore the constitution with impunity. Article 37 of the constitution in fact, provides for impeachment of a president who abrogates the constitution of Zambia. Further, as was held in the case of Miyanda v Attorney General, Madam Justice Mambilima was on firm ground to state, “the president is not above the law.” The president is a creature of the constitution and not its benefactor (Article 1 s.3 of the Constitution of Zambia).

Article 44 of the constitution casts presidential functions in the following manner: “(1) As the Head of the State, the President shall perform with dignity and leadership all acts necessary or expedient for, or reasonably incidental to, the discharge of the executive functions of government subject to the overriding terms of this Constitution and the Laws of Zambia which he is constitutionally obliged to protect, administer and execute.”

Perhaps it should be fair, at this juncture, to compare and contrast at least two issues to do with retired Chief justices, that of former chief justice Ernest Sakala and the present temporary successor Chibesakunda. Justice Mutuna ruled very eloquently, in the case in which John Sangwa sought to challenge the validity of Ernest Sakala’s continued stay at the helm of the judiciary. According to Sangwa, Sakala was over the prescribed age limit and as such he could not validly hold the substantive office of Chief Justice. After the hearing, Justice Mutuna did rule, and rightly so, that the President as chief of state does have some discretionary and reserve powers to appoint a person like Sakala to remain in office beyond the prescribed age.

Having regard to Mutuna’s ruling in the Sangwa v. Attorney General & Ernest Sakala, the issue therefore is to ask whether the two cases are sufficiently similar as to allow the Ernest Sakala case to provide guidance to the present issue. Sakala’s issues should be distinguished from Chibesakunda’s, however. At law, precedence is valued only to the extent that reasons the court applied in one case could be sufficiently, applied to the other case. Ernest Sakala was the substantive chief justice and he attained retirement age while he was in office. With Justice Chibesakunda, she has come to the office after attaining the age of retirement.

Sakala was ratified by parliament. Chibesakunda was not ratified by parliament. In fact, the subcommittee of the Zambian parliament refused, twice, to even consider taking this matter to the whole house. Undeniably, without parliamentary approval there is no way we could draw parallels between Sakala and Chibesakunda.Chibesakunda’s ascension to the throne of Chief Justice does appear to have been a deliberate effort by the Michael Sata executive to influence the judiciary. This never seemed to have been the case with Ernest Sakala. Indeed, the rhetoric of the ruling party’s secretary general has only gone to affirm the position that the Patriotic Front was looking for a more pleasant face in the judiciary and when they found Chibesakunda, their prayers were answered. Indeed Chibesakunda has not disappointed. She might go into history as one of the most politically biased chief justices Zambia has ever had. She even beats Kaunda’s patron justices of the second republic. In fact, going by the recent decisions she has presided over, it is clear that Chibesakunda is biased and her legal reasoning is not based on law but on other political considerations.

Two important events from the judiciary should be concerning. In the now infamous Supreme Court case of Mutuna & Others v. Attorney General (2013), the ratio decidendi of that case was so outrageous that it should be assigned to the dustbin of legal history. What is so unusual about the Mutuna case was that Chibesakunda with her majority invented doctrines that should be repugnant to a democratic nation. Not since the times of Kaunda did we ever have a Supreme Court that reaffirmed presidential power that rightfully belongs to the age of dinosaurs. For example, it was the opinion of her majority that the president of Zambia is “the authority on everything”. This statement is not only unnecessary but also legally problematic. It is from this assumption that she decided that since President Sata is the authority on everything, he then must have the power to fire judges based on “information the president receives as head of state”. The dissenting opinion of Justice Elizabeth Muyovwe rightly castigated such reasoning.

The other event that is disturbing concerns the famous press statement given by a spokesperson of the judiciary. That statement was not only so outrageous in its defiance of acceptable legal order, but it was unashamedly excessive. Since that statement is a subject of litigation before Justice Mulenga, I should not go into detail, but it suffices to mention that the so-called statement from the judiciary has left a bitter taste. It is bitterer than the herb “umunsokansoka”.

The Law Association of Zambia equally castigated the statement and urged the nation to completely ignore it. Dora Siliya for her part is asking the High Court to review Terry Musonda’s press statement, as it was not given “ex-cathedra.” Terry Musonda lacked the official capacity of a court of law to make pronouncements on issues that can only be decided by a duly constituted court of our republic. Zambia has no other court within the judiciary, than the duly constituted courts of law presided by ratified judges and not support staff like Terry Musonda. We remain to see how Justice Mulenga will handle this issue.

For now, we must be clear about one thing: a chief justice who causes a non-judicial officer to issue statements should not be a subject of our admiration but should be a predicate of our scorn. This is why, it should be affirmed very eloquently that Madam Chibesakunda should resign.

Does president Sata then still reserve the power to appoint anyone he wishes to act as Chief Justice. Indeed, as I have mentioned above, the president does have some of that power within reasonable limits. The President might only appoint a non-qualifying chief justice in extremely rare circumstances. For example, if the Martians were to invade Zambia and abduct 790 of the 800 lawyers in Zambia, a president might be justified to act in the interest of the state by appointing a dinosaur to be an acting Chief Justice. Again that should be done in very rare circumstances, though. That being the case, presently, there is just no reason why in view of such abundance in legal talent the President should insist on having a retired justice to be Chief Justice. Indeed, if the President so wishes, he would not struggle to find that Zambia’s Deputy Chief Justice Ireen Mambilima is more than willing and ready to become the Chief Justice. If not, we still have hundreds of talent to pull from. For all we know, the 800 lawyers on LAZ’s list are still very much around and the Martians have not abducted them at all.

Further, Justice Chibesakunda’s continued stay at the helm of the judiciary is so absurd since it appears contradictory to her own ratio decidendi in the Mutuna case. In the Mutuna case, she mentioned that judges should have guards. She did sound like she was very committed to have judges follow the law. That being the case, why isn’t she following the law herself by recusing herself from this position? She has not been ratified. She is passed the retirement age. Why then does she insist on staying on? The saying of “kuya bebele” could not have come at no better time than this. Justice Chibesakunda should go.

Justice Chibesakunda has been “acting” for over a year now. Using a purely administrative argument, no one should act in a position for so long. Borrowing from the Executive, article 38 of the Zambian constitution does not even envisage an acting president for a period exceeding 90-days. That being the case, it is equally absurd that we should subject the judiciary to a temporary head who has been “acting” for over a year. Since she has not been ratified into the position and additionally, since she doesn’t qualify for it, the normal thing to do is to resign and ask His Excellency to find another person to appoint. As I have mentioned above, if it is a relative the president is concerned about, he has an abundance of young vibrant abepwa, abafyala, abeshikulu, ba cufi banabo, and many more bululus whom he could take to parliament for ratification. It does not have to be Madam Justice Chibesakunda.

It is quite pathetic that a justice who has dedicated herself to the Zambian cause should come to this end. Civil society has rejected her. The Law Association of Zambia have said no. Kuya bebele is what everyone is saying. I just hope that madam justice Chibesakunda will resign before she turns the whole judiciary into a kangaroo court.

ImageKuya bebele!

What We Can Take-Away from Justice M.S Mulenga’s Ruling in the Dora Siliya Case

By E. Munshya wa Munshya

On Tuesday, 3 September 2013 Justice Mungeni Siwale Mulenga ruled in the case in which Dora Siliya and others had sued the Attorney General and the Electoral Commission of Zambia for banning her and her friends. The media outlets have ably reported that Dora Siliya and her friends have won. Justice Mrs Mulenga reversed the decision of the Electoral Commission of Zambia and instructed the electoral body not to bar Siliya and her crew.

A detailed analysis of the issues to do with this case is beyond the space and scope of this article. That being the case, there are a few “take-aways” from this ruling.

The fact that the judiciary has faced tremendous criticism about its partiality has been very well highlighted in the past few weeks, if not months. In fact, I have written in this column the need to have a new face at the helm of the judiciary. It has been my position that the Acting Chief Justice Lombe Chibesakunda is very compromised due to the fact that she does not satisfy the requirements of the constitution to be appointed to that position. She is passed retirement age and parliament has refused to ratify her.

The so-called judicial press statement, she caused to be written, by Terry Musonda has only gone to show just how partisan Madam Chibesakunda is. I will return to this matter later.

Madam Chibesakunda’s majority holding in the case of Mutuna and others v. Attorney General also demonstrates an insane amount of judicial partiality and political sycophancy on her part. It seems that Mutuna was not decided based on law, but based on other political considerations. Remarkably, Chibesakunda in that case went to state that the Zambian president is the “authority on everything.” That statement is, for lack of a better term, total nonsense. In a democracy like ours, there should be no place for a judge to hold that the president of Zambia is the authority on everything. This nonsense is more apt for the days more barbaric than ours and for a generation of Kaunda and not this generation of the third republic. All well meaning Zambians should reject such paternalistic innuendoes.

Additionally, in the face of such brazen judicial confusion prompted by illegally appointed Chibesakunda it, therefore, is exciting to have a judge like Mungeni Siwale Mulenga who sees through the façades and redeem the face of the judiciary. It is judges like Mulenga who offer hope to the current judiciary. In fact, without these judges, the judiciary would have already turned into a congregation of kangaroo courts presided over, not by kangaroos, but by dinosaurs.

Justice Mulenga took the issue of Terry Musonda’s press statement head on and made it very clear that this statement not only lacked juridical value, but also was wrong to purport to have been issued in the name of the judiciary. The statement was void “ab initio”. She equally took issues with the purported letter authored by the deputy registrar of the High Court of Zambia. In her own words Justice Mulenga stated:

“I have deliberately placed the word ‘judiciary’ in inverted commas as it is not apparent on the face of the press statement and the letter which Courts or offices comprised the Judiciary whose opinion was being advanced”.

And then Justice Mulenga goes to make perhaps one of the most profound statements that should serve as good law for the future. She stated on page J38 of her opinion that,

“in the history of the Judiciary in Zambia, there has never been occasion where the institution has given interpretations of the law through press statements”.

This judgment does seem to highlight some ineptitude on the part of Zambia’s attorney general. I am of the opinion that looking at his performance and legal analysis, Mumba Malila could perhaps capture the honor of being Zambia’s worst attorney general. I just wonder why President Sata had to call him back after his murky performance under the Mwanawasa government. In stating that Malila is inept as Attorney General, this should not be misconstrued to mean that I do not think that he is sharp and intelligent. In fact, reading through Malila’s academic writings before he became attorney general you get the feeling that you are reading a modern human rights lawyer who is aware of the consequences of judicial action. However, this is not reflected at all in his work as attorney general. One would wonder why the same Malila who was a passionate human rights lawyer would a few years later decide to defend perhaps one of Zambia’s greatest anti-human rights legislation: the Public Order Act.

In the present case of Siliya, Malila does not appear to be forthright. His objective was to have the case dismissed even before a hearing was conducted. In the preliminary issues he raised, Malila argued that the statements from Terry Musonda, from Priscilla Isaacs and from Wynter Kabimba should be ignored absolutely. He claimed, that these “were mere statements with no legal force” (p. J20). He does not end there, however, he even goes on to claim that Dora and others could bring him back to court after the by-elections are conducted even without their participation. He seems to want to keep his cake and eat it too.

On one hand, he claims ECZ was right to bar the candidates, and then in the next minute he argues that in fact, whatever statements were issued by Terry Musonda and Priscilla Isaacs did not have legal value. This is a classical case of cognitive dissonance at its best.

And then of course, hilariously, Malila claimed that the ECZ statement and that of Terry Musonda were of a general nature and did not specifically name any of the three applicants: Dora, Maxwell and Hastings. Here, the learned attorney general seems to be acting like a bully at Chabanyama Primary School who refuses accountability because he had not “named any names”. This was a very lame reason to say the least.

But Justice Mulenga was very vigilant. She ruled against all the three preliminary issues Malila had raised. Honestly, it would be futile to only entertain Dora after the ECZ has already had elections in Petauke.

Malila’s behaviour should not be surprising though. Zambia’s worst brain drain has nothing to do with professional Zambians who have migrated to other countries. The worst brain drain in Zambia happens to well-educated professionals after they acquire political power. As such, you wonder where the legal and human rights brains disappeared to in Malila after he became Attorney General of Zambia.

This judgment has also helped to clarify electoral laws. For example, Justice Mulenga has had to decide on the right standard of proof needed when the High Court is issuing the report about a petition in connection with s.104 of the Electoral Act 2006. It is clear that according to the case of Lewanika and Others v. Chiluba, the Supreme Court reaffirmed the standard of proof needed in an electoral petition. The standard of proof is somewhere between the civil standard, the balance of probabilities and the criminal standard of beyond reasonable doubt. However, when it comes to issuing a report about a corrupt candidate within the meaning of s.104, the standard of proof needed has got to be closer to the one needed in a criminal trial – beyond reasonable doubt. Justice Mulenga, rightly, rationalizes that due to the penal character of the “report” it is important that guaranteed rights are protected and that only those who are morally blameworthy should be barred. The standard that meets these objectives is none other than the standard of beyond reasonable doubt.

Indeed, it would be a great injustice to bar a candidate from voting for five years and from contesting elections for that period only on the basis of the standard of balance of probabilities. When the consequences of evidence would result in serious impairment of one’s constitution rights, the interests of justice demand that a higher standard of proof be adhered to. The sanctions envisaged in s.22 and s.104 are “grave and penal hence the need for the requirements to be strictly followed”, she wrote in her opinion.

Additionally, the High Court report is not automatic. According to Justice Mulenga,

“the mere fact that the High Court nullifies an election based on corrupt or illegal practice does not in or of itself constitute guilty report of the candidate whose election was nullified.”

To comply with the law, Dora Siliya was going to go back to the courts and have the courts institute proceedings aimed at issuing a report to bar her. But this process should be done in a judicial manner.

For now, it looks like the Electoral Commission does not want to appeal this ruling any further. They have complied and announced 10 September 2013 as the nomination dates for Petauke, Malambo and Mulobezi. And in all fairness, let these by-elections be fought before the people and not before the courts of law.

Disclaimer: This post is not intended to convey legal advice. Those in need of specific legal advice should consult members of the Zambian Bar.