Monthly Archives: May 2014

One Zambia, Many Vultures: Towards a More Humane Politics During Presidential Illness

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

The question is not really about whether President Sata is sick or not. The question is about how the nation and its political players should conduct themselves in moments of alleged presidential illness. When a president falls ill, or rather when allegations of presidential illness become apparent, we as a people have some choices. Some of these choices are terribly hideous. The first choice is to use the illness of the president as an opportunity for political posturing or partisan cannibalism. The second choice is to deny and deny. And then deny some more. There is a better choice, however. A choice far better than these two choices: a more humane way of doing politics. The rivers of national sanity and morality have never dried up as to deny us the opportunity to be civil when reacting to the misfortunes of our fellow humans. There is a healthier manner of how we should handle difficult issues adjoining a presidential temporal incapacitation through illness.

Levy Patrick Mwanawasa

Levy Patrick Mwanawasa

Political posturing is never in the best interest of the nation. In fact, political posturing during rumoured presidential illnesses, has in the past, led to bitterness, angering hatred and obscene disappointment. For example, during the many illnesses of Levy Patrick Mwanawasa (president from 2002 to 2008), a very verbose leader of the opposition at that time wasted no seconds in using Mwanawasa’s alleged illnesses as a ticket to scorn Levy’s government and leadership. That same opposition leader mustered enough vigour to claim, quite undiplomatically, that when Mwanawasa was examined by doctors in India, “they found that there was no coordination between his brain and his mouth.” These were very harsh and discourteous words to come out of the mouth of an important leader of Zambia’s opposition at that time. What such sentiments went to prove was the unfortunate fact that taking such stances when a president is ill demolishes the good human spirit that should be resident in all of us during the misfortunes of others. Now that there are plausible rumours of the current president being ill, it is incumbent upon us not to treat President Sata, the way a sick Mwanawasa was treated. As the saying goes, “two wrongs never make a right.” We can never triumph over evil using evil.

The best we all could offer during this very difficult time are the finest wishes, extravagant prayers and resilient hope for the full recuperation of President Sata so that he could find the strength he needs and the fortitude he requires to fix the many problems that our country is facing. Zambia currently has a currency that is dropping in value like a ball stumbling from Lebron James’ huge hands. The Kwacha has hit K7 000 (in real money) to the US dollar. Students at the Copperbelt University (CBU) have downed their brains until their meal allowances are increased by at least 45%. They are asking for Ba John Phiri to address them. Roads that were built linking Ndola to Kitwe have developed severe potholes days after the contractors handed over the keys to Hon. Yamfwa Mukanga. Rupiah Banda’s flagship project stadium originally named “disaster stadium” by Ba Chishimba Kambwili is falling apart even before it is officially commissioned. It is still not known when this official commissioning will take place considering that both Kambwili and his boss missed the Sunday expected launch day. Old and finished ZAF aircraft are now murdering our soldiers like roaches. Defence Minister Edgar Lungu spends more time mourning soldiers killed during peace than during war. Our national debt, being managed by Bo Alexander Chikwanda, is rapidly dashing towards pre-HIPC points. PF contracted Kaloba currently stands at $4.5 Billion. Honestly, it will require the steady fortitude of a very fit president to preside over the recovery of this country. That being the case, we all do very well to hope and pray that His Excellency recovers quickly, for great is his work and enormous are his challenges. Some of these economic challenges he created them himself. Fya kuiletelela fye.

Munshya wa Munshya

Munshya wa Munshya

The other choice of handling the alleged illness of a president does not inspire confidence at all. Even when it is so notoriously obvious that vintu sivili bwino, it is sad that the PF government’s default response to citizens’ concerns over the health of the president is that of don’t kubeba. This is sad. But knowing the vulturistic nature of our politics, PF government is denying it because somehow they feel like the political vultures are already circling. That should not be the case. During this time, the government should genuinely share, with the citizens, the state of the health of the president. And from there, ask the nation to pray and hope for a quick recovery. Stating that the president has malaria or pneumonia should not be taboo for any government. It should not be a taboo topic, definitely, not in our times. In fact, even if the illness were very serious, it would still be in order for a government to inform the nation so that goodwill and prayers are offered in return. Our country has excellent doctors in all hospitals to help when called upon. Great Zambian hospitals such as UTH, Chainama, Ndola Central and Levy Mwanawasa can always send their best physicians to help. Denials are hardly the best policy. Denials become even more ridiculous when evidence, as seen on TV, pictures and face-to-face, shows a complete different story. There is a saying, that “she who hides her illness risks embarrassment in death”. A government should be proactive in communicating such hardships instead of being mischievously secretive.

We should pray for Michael Sata

We should pray for Michael Sata

Zambia is a democracy. We cannot really completely eradicate the politics of opportunism during a trying moment like this one. Already, vultures in the ruling party are positioning themselves for a depraved feast at the slab of misfortune. A wake of vultures is ready. We have heard them in Mpulungu. They are loud and clear in Mufulira. The vultures have started to gather in committees. The wind is growing dark, and the energy is beginning to plunge. There at, perhaps, the allegations of the last breath, the queenmakers are rearranging their ugly seats casting lots and perhaps spreading bones. While we should not be surprised at this behaviour, we should nevertheless hope and pray that they do so in a humane form. There is still a way to transform vultures into doves. There is a way to redeem our politics from that of depravity to that of humanity.

The government of Zambia should be forthcoming with information. This is the best way to lead and to keep vultures at bay. The people of Zambia should also be clear about showing their true humanity. This is the best way to be citizens. The constitution of Zambia should be respected and Cabinet should only act when there is clear evidence of incapacity. But for now, all of us should keep praying and hoping that our problems and the many challenges we face are taken care of in the most humane way. Pafwa abantu, pashala bantu.

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You are welcome to use this material for academic purposes. Here is the suggested citation. Suggested citation:

Munshya, E., ‘One Zambia, Many Vultures: Towards a more humane politics during presidential illness’ Elias Munshya Blog (30th May 2014) (available at http://www.eliasmunshya.org)

 

 

Kenya’s New Marriage Law: A Call to Critical Reflection

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

In a culture driven by headlines, our people mostly never take the time to read the fine print. Ours is a society, which ignores the body of any information in preference for what the headlines are screaming. Just a few weeks ago, the headlines squealed and most of our people believed that Kenya had established new polygamy laws. With that misleading information came the outraged. Although few had taken to read the actual law that the headlines were talking about, they rushed to condemn the new law that Kenya had enacted. Western media sources claimed that the Kenyan president “had signed a law, which will now allow Kenyan men to marry more than one wife.” This was the gist of the news. And this essence was clearly misleading. The headline flew very fast and many Africans, including some Zambians jumped on the bandwagon to condemn this law. This information was very disingenuous to say the least. Headlines claiming this are filled with half –truths. To be fair to a good conversation that Africans must have, we must relook at what the law actually says and why most African societies including Zambia need to reform and repackage its marriage laws.

Munshya wa Munshya

Munshya wa Munshya

Just like any other law, this legislation is not perfect. There are some provisions that need refining. For example, it creates too many categories of marriages. It has quite a number of marriages; some are contracted under Islam, some under Christianity, others under customary law. It then has what it calls civil marriages. The law could need a little simplicity than this complex make up of these marriage categories. The new law also does seem to suggest that a witness of a civil marriage should not be “intoxicated”. It is quite surprising why it would contain such a provision. It does not define what is meant by intoxication. Nevertheless, it is trite law that a contract created while intoxicated still remains a valid contract. I wonder why it specifically prohibits intoxicated people from being witnesses to a marriage. The law also does run into definitional problems by trying to define what is meant by the Hindu religion. The definition goes to define Hinduism as “including Buddhism”. The Kenyan parliament is not a novice parliament to make such a definitional blunder. The law also forbids marriage between cousins. This proscription however, does not apply to marriages contracted under Islam. This ban would be controversial in Zambia, considering that some Zambian tribes do recognize customary marriages among distant cousins.

In spite of the obvious weaknesses in this piece of legislation, it is in my opinion a progressive legislation. First, it is quite significant in the way it raises minimum marriage age for ladies from the previously undefined age to the age of eighteen. Under this new law, a woman cannot be married unless she is eighteen. By far, this provision removes the ambiguity that came with some African customary practices, which had no clear minimum age for marriage. With this new provision it means no one using either tradition or religion can go marrying off young girls.

Second, this law attempts to consolidate into one piece of legislation several scattered provisions that dealt with marriage. The law repealed about ten other Acts dealing with marriage. It certainly has not simplified marriages and their statutory provisions, but it is good that now Kenyans will have to go to one piece of legislation and find the critical information they need about this important institution. Consolidation is good for laws. This is even truer for most the patchwork laws we inherited from England and Wales.

Third, this law has brought under statutory cover, the customary practice of polygamy. This is the part that got newsmen and newswomen around the world most interested. This law did not create anything new with regard to the practice of polygamy; all it did was grant statutory recognition to customary marriages that already have the presumption of polygamy. The law did not in any way impose the presumption of polygamy on Christian marriages at all. To put it simply, there is a presumption of polygamy on all marriages contracted customarily, but this is not the case with civil or Christian marriages as defined by this Act. Bringing statutory recognition to the customary practice of polygamy has several advantages. It certainly, could help partners in such polygamous relationships to have more access to property rights than is the case under customary practice. Additionally, bringing customary marriages under statute removes the second-class stigma assigned to such marriages. In Zambia, most marriages are contracted under customary practices. It is ridiculous that so many years after independence, we should still stigmatize and delegitimize customary marriages which most of our people contract.

This then brings us to the issue of polygamy specifically. Does this law now make Kenya more polygamous than was the case before the law? Obviously, the answer is no. As I have stated above, this law only grants statutory recognition to those marriages that until now had not had that recognition. Kenyan men will not suddenly go and get wife number two, three or four. If they did, it certainly is not because of this law!

wedding_rituals_kenya

There is need for critical reflection

We might need to look at the implications of this law on what is commonly referred to as “Christian marriages”. In Zambia, we do not have the stark distinction that Kenya does seem to have drawn between the “civil marriage” and the “Christian marriage”. Nevertheless, in Zambian marriages contracted in the church while still retaining the “Christian” fervour are “civil marriages”. To characterize these civil marriages as Christian while not extending the same to some customary marriage is a serious misnomer. This is perhaps where Zambian law needs reform. The only thing that should define a Christian marriage should be the faith of the people involved in the marriage and not the way it was contracted. It is ridiculous to only regard those marriages conducted under the “statutory” law to be “Christian” marriages while ignoring millions of other marriages involving Christians who nevertheless married under customary law. A customary marriage could still be a Christian marriage, and we might need statutory changes to accommodate this.

I have tried to be careful here not to delve into the debate of the moral undesirability of polygamy. I am also not going to delve into what should be the Christian view of polygamy. It is beyond this article. However, I have tried to challenge the misconceptions concerning this new Kenyan law. The law is not a polygamy law, but a marriage reform law. Looked at it from that perspective, we should all find reasons to move beyond condemnation to critical reflection.

 

 

Proof and Punishment: Evidence Law in “General” Kanene’s Conviction

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

Several judges of the High Court of Zambia have been quite consistent and clear with regard to the evidence the prosecution needs to provide when proving the age of a minor in defilement cases. In following the 1973 legal precedent of the case of Phiri (Macheka) v. The People most judges have gone to hold that “age should be proven by one of the parents or by whatever other best evidence is available.” This case has formed an integral part of Zambia’s evidence law. In a criminal case, the State has the burden of proving, beyond reasonable doubt, all the elements of a case. Main elements of most criminal cases hinge on at least two components: the prohibited act (called actus reus) and the required mental element (called mens rea) that goes with it. In the case of child defilement, the prosecution must prove that an accused had sexual intercourse (the act) with a child and did this intentionally (the mental element). As mentioned earlier, the prosecution must prove that (1) sex took place, (2) it was with a minor, and (3) the accused did this intentionally (s.138 of the Zambia Penal Code). It would be beyond the scope of this article to analyse each of these elements in detail. I should leave that to a university course in Criminal Law or Evidence Law. However, I just wish to deal with one element involved in this section: proof as to age of a victim.

The Law of Evidence deals with how a party can prove its case before an impartial tribunal. There are several sources of Zambian evidence law. I will mention only those relevant to this article. The first one is statute law. For example, CAP 43 of the Laws of Zambia (The Evidence Law Act) contains some guidelines with regard to evidence law. Second, most of the penal code provisions do come with some guidelines of how a particular offence can be proven. The third source of Zambian evidence law is the common law. By this we mean the law that has come to us through the history of precedents as interpreted by the judges. In fact, a bulk of what constitutes evidence law today comes from these sources. It comes from what judges have ruled about what can be admitted and what cannot be admitted in court. The fourth source of evidence law is the trial judge or magistrate who is expected to use discretion to admit or reject some evidence if they will be prejudicial, or if the evidence will put the administration of justice into disrepute. With specific reference to defilement cases, it is settled law, through the 1973 precedent that in proving the age of a victim, the testimony given by a parent in court “is conclusive unless evidence to the contrary is adduced” (Justice Siavwapa in Tembo v. The People [2011]). It cannot help an accused to simply dispute the testimony given by a parent of a victim while failing to adduce contrary evidence. When a parent to a victim of defilement testifies in an open court that a child is indeed a minor, any one wanting to challenge this testimony must, through cross-examination, discredit this testimony, or should provide contrary evidence. Failure to do so, unfortunately, could lead to a conviction.

While I cannot deal with the specific issue regarding the conviction and appeal of Mr. C. Dimba, who has been slapped with 18 years for defilement, it would be interesting to see how the judges will handle this appeal. As widely reported in the press, the convict is appealing on the basis that the prosecution did not provide sufficient evidence with regard to the age of the alleged victim. At the centre of this appeal is the denial, by the appellant that the victim is actually not a minor. The convict does not seem to deny that sex took place. Second, he does not deny that he did it intentionally. What he denies concerns the exact age of the victim.

Without doubt, age is an essential ingredient of the offence of defilement (Mulonda v. The People, 2004). As such, what is at issue in this appeal is what weight if any, the trial court should have given to the testimony rendered by the parents of the victim in an open court. Again, this issue could hinge on how the Supreme Court will relate facts of this case with precedent already in place. Basing this appeal only on the reliability of a parent’s testimony is a very difficult proposition. There have been comments about how that, in order to convict Dimba, the court must have been provided with “documentary” evidence about the age of a victim. Some are even suggesting that a medical or scientific proof should be provided to substantiate the age of a victim. This is where we need to differentiate reality from the fiction we find in Hollywood dramas such as “Criminal Minds” and stuff like that. In my opinion, all this obsession with scientific evidence is not as reliable as that provided by a parent of a victim. The viva voce (word of mouth) testimony given in a court of law, subject to cross-examination, is the golden standard of evidence. The word of mouth testimony given by a witness (the parent) in open court about what they observed with their senses is very difficult to dislodge. In this case, the parents had testified before the trial magistrate that this child was below the age of sixteen at the time this offence took place. You have to have a very strong case to be successful on appeal.

Convicted Musician

Convicted Musician “General” Kanene

The 2005 reforms to s.138 of the Penal Code expunged the defence of “reasonable belief” from the offence of child defilement. In 2011, however, this defence was reinstated. Parliament did well to reinstate this defence. A person who otherwise is guilty of child defilement could use this defence. It shall be a defence for a person charged with an offence under s.138 to show that they had “reasonable cause to believe, and did in fact believe,” that the child was not a minor. I think this defence takes care of some grey areas so that only those who are truly culpable should go to jail. However, it is interesting that Justice Mchenga did allude to this when he mentioned in his sentencing that the convict did seem to know that the girl was a minor by asking her “not to come in uniform, but come in plain clothes.” This is a very persuasive finding of fact that could prove critical going forward. I doubt whether this defence could be available to someone who knew very well that a girl was a minor! The more you know, the less likely that you could be successful in raising this defence. For proof, the testimony of a parent seems appropriate. For punishment, the judges are meting out stiff penalties. For the careless, s.138 should be taken seriously. If they are below 16 years of age and you have sex with them, then you will go in for 15 years and above. That’s the law!