Monthly Archives: June 2014

When a Vice-President works in the dark: Guy Scott and the vacuum from Tel Aviv

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

Guy Lindsay Scott

Guy Lindsay Scott

Never in the short history of our republic have we had a vice-president who is as marginalised as Guy Lindsay Scott. Effectively, this Patriotic Front government has managed to reduce the vice-president of our republic to a non-entity. As if it is not enough that Scott has no clue of much of the stuff happening in a government in which he is number two, the Speaker of our parliament ordered him to release a statement about the whereabouts of President Sata. The people of Milenge would call this “uku tumfya”. Kutumfya to ask Scott to release a statement when the gentleman is in the dark, as always. The statement Scott released to parliament is notoriously honest, scandalously ironic and goes to prove just how out of the loop Scott has been. That Scott has not resigned in spite of this rampant snubbing deserves an analysis of its own. But it certainly takes a lot of steel to be a Veep in a cabinet, which shamefully ostracises you.

Scott supplemented his parliamentary statement with a British Broadcasting Corporation (BBC) interview he had on Wednesday June 25 2014. In this interview he accused a “small tribe in the south of Zambia” as the source of lies, innuendo and rumours about President Sata’s health and controversial visit to Tel Aviv. Without, dwelling too much on the demerits of his insult of this “small tribe”, it seems that Dr. Scott seems to project his own insignificance in the Patriotic Front on to others.

Guy Scott, in spite of having the Zambian constitution on his side, has never acted as president. Foremost, the job of any vice-president is to act as president in the absence of a president. Additionally, a Veep is supposed to manage an executive transition in the event of a vacancy in the office of president. As an acting president, a Veep is supposed to call for fresh elections within ninety days. It is quite fascinating though that Scott has never, at any time, fulfilled his constitutional job description. Sata always leaves power in the hands of Dr. Scott’s unelected juniors. This should hurt. An explanation has been cooked up, that tries to justify this disregard of procedure by stating that Scott cannot act as president because he is a muzungu. I have searched the constitution of our republic, and it does not bar a Whiteman from acting as president. The decision to sideline Scott within the realms of the don’t kubeba power structure does seem to me that it is informed by racism or tribalism. What else could explain this clear preference for black Zambians over a white one? The irony is that this very tribalism that victimizes Guy Scott is the same one he is projecting on to others when he characterises those wanting information about his boss as a “small tribe” from the south of Zambia. This is the problem of racism and tribalism: it turns its victims into vicious tribalists themselves. The only way to help Dr. Scott, perhaps, is for the PF government to stop its policy of a racist embargo on Scott solely because of the colour of his skin.

It was on Sunday, June 22 that Hon Mwansa Kapeya released a government statement explaining that President Sata had arrived in Israel at “the invitation of President Shimon Peres.” This was surprising because the trip had not been previously announced. In fact, Kapeya seemed to have released the statement only after rumours had surfaced about the whereabouts of President Sata. Kapeya stated that Sata left Zambia on Friday June 20. So between Friday and Sunday, there was no word from the government about Sata’s whereabouts. This was a serious lapse in the judgment of presidential handlers. An invitation of our president by the president of Israel should never be a secret.

Kapeya also stated that Zambia’s Honorary Consular-General Ms. Ronit Hershkovitz received President Sata. This should make this trip quite official and it buttresses the reasons why the Zambian public should have been informed of it in the first place. After this statement from Kapeya, social media went into overdrive particularly when it became apparent that Peres would in fact be in Washington, DC and not Tel Aviv to host Sata. The response from Kapeya was to threaten jail for those doubting Thomases. Kapeya enjoys jailing, it seems.

And then parliament intervened. It was a Member of Parliament from Southern Province who raised a point of order requesting the Speaker to direct the PF government to clarify this Sunday statement. This honour fell on the leader of government business in the house – the vice-president. Unsurprisingly, Dr Scott’s statement seems to have contradicted Kapeya’s central assertion:

Unfortunately, it is also asserted that he is doing this at the invitation of the Israeli President Mr Shimon Peres. This is misleading because President Sata is not there on a State Visit but on a Private Working Holiday…Sata will be combining sight-seeing, relaxation and business meetings.

Scott then concluded by stating that this is all he could say without entering “into the fantasy world of the Zambian social media and its necrophiliac correspondents and editors.” Obviously, Scott is very ruthless with words. He is of British heritage after all. It is sarcastic that he could label social media in these insulting words when his boss runs a very popular Facebook page that has nevertheless not been updated for weeks. Sata’s Facebook page came with a lot of cimwela and was a reliable source of ZNBC main news. Surprise, surprise, Guy Scott today calls social media “necrophiliac”.

After this statement in parliament BBC asked him about whether President Sata has cancer. He answered, “I can’t know because I am not his wife”. Asked further about the rumours about Sata’s health, Scott answered it is only a small tribe in the south stoking these rumours.

It makes no sense to discriminate against Guy Scott - Munshya

It makes no sense to discriminate against Guy Scott – Munshya

Guy Scott could be right, he has no idea about President Sata’s health. In fact, he has no idea about many things going on in government. The reason is not really because he is not Sata’s wife. But rather that, in spite of being a vice-president, he has been erroneously marginalised based on the colour of his skin. While Scott salutes his unelected subordinate Kabimba as acting president in Lusaka, I hope Scott’s boss enjoys his time in the Jewish state “sight-seeing, relaxing and having business meetings”. The Jewish state has confirmed that President Sata is in Israel at the invitation of President Peres. This is a welcome reprieve coming half a week later. Nevertheless, while all this is going on, I hope Scott will not think that the health status of President Sata is a manufactured rumour by a small tribe. If that were the case, all of us, will then be that small tribe. Scott should make no mistake, if this small tribe decide otherwise come 2016; he and his boss will never go sightseeing in Tel Aviv at taxpayers’ expenses. Never again.

When a smuggler acts as President: Wynter Kabimba and his men from Kenya

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

Personal sabotage should know its constraints. But just when you think that stuff cannot get any worse, that is when it usually does. It is one thing to make a small mistake, or perhaps, to misspeak once in a while. We are all human after all. But when you are part of a cabinet handling 13 million Zambians, you must be more careful and more measured, with the class of words you spit out of your mouth. It is no secret that the Patriotic Front (PF) government lacks basic diplomatic skill. Never in the history of our republic have we had such horrendous leaders in charge of our foreign diplomacy and national security. A foreign policy disaster is just being averted by some good leadership skills exhibited by the new minister of foreign affairs. He is trying his best. Harry Kalaba seems to have brought a little bit more stability and better class to the Ministry of Foreign Affairs. However, just when you think we are now having a good handle of foreign policy, someone just manages to sabotage the little effort being done. The story of Kabimba smuggling into Zambia, “Kenyans through Nakonde border” is so diplomatically obtuse that no one in their right mind could ever make such a reckless assertion implicating a foreign country in matters so sensitive.

It could not have come at a more difficult time for Kenya and her people. Kenya is facing multiple problems at the moment. Al-Shabaab is threatening to kill them. In Mpeketoni armed men stormed peaceful football fans and killed several. In the intelligence briefs that Sata should be receiving, he has probably been informed of the Kenyan situation. Kabimba should also be intelligent enough to know that Kenya currently is battling a barrage of both local and cross-border terrorism. We should all sympathise with the good people of Kenya during this difficult time.

President Sata and Secretary General  Kabimba

President Sata and Secretary General Kabimba

From such a background, it is strange, that Wynter Kabimba would growl about how he smuggled Kenyans into Zambia to do Parallel Voter Tabulation (PVT). No mention of another country by a senior cabinet member ever goes without diplomatic consequences. Kabimba’s statement is wrong, confusing and surprising to say the least. I have already explained that this testimony is diplomatically imprudent. How can our Minister of Justice implicate citizens of a sister nation, that he had smuggled them into Zambia to illegally participate in Zambian elections? Who says that? Who in their right mind would even string a sentence together that contains such diseased implications? To make matters worse, Kabimba even mentions that had Rupiah Banda won those elections, he would have sent him to jail as a result of this illegal activity.

Several politicians have jumped on this and are now claiming that Wynter probably did in fact use the Kenyans to manipulate elections to favour the Patriotic Front. For this, the opposition wants Wynter jailed. Opposition parties have a reason to read what they want from Wynter’s statement. But I doubt the veracity of Wynter’s statement. Kabimba seems to be a deeply troubled man coveting absolute power at all costs. Jail should be spared for people more talented than this.

When a smuggler acts as President

When a smuggler acts as President

It is a notorious fact that Wynter is fighting bruising succession battles within his party. He is trying to threaten those who do not want him at the helm of PF. In fact, some PF members are anti-Kabimba because they know him to be unpatriotic and wearisome. In the Eastern Province, a camp identified with Lameck Mangani, seems to have had little regard for Kabimba. For his part, Kabimba, made no qualms about what he really did feel about Mangani. Shortly after 2011 elections, Kabimba claimed quite audaciously that Mangani was not a member of the PF, but was just an impostor. Strangely enough, he went to anoint this impostor as parliamentary candidate, not once, but twice. After the fights, Mangani has now been fired.

It is during these succession wars and meetings in Chipata that Kabimba pulled a stunt only appropriate for primary school. He knows he lacks legitimacy in the eyes of many PF members. For some reason, he is not just registering as a good guy to replace Sata, either before or after 2016. There is just something that is putting Zambians off about Kabimba. It is to convince one of these doubting groups that Kabimba announced this infamous Kenyan connection.

In paraphrase he stated: “don’t mess with me”. “I am a very senior member of this party”. “ I single handedly made this party to win.” And then he goes offside, “I, in fact, hired Kenyans and smuggled them through Nakonde to do PVT and we won the elections.”

It appears like Kabimba will do anything to try and buy his own legitimacy. He will say anything. He will claim anything. He is willing to do anything. He does not seem to care about the implications of what he is saying, as long as it raises his own bruised profile within the PF. Anyone would know that Kabimba cannot and did not rig the 2011 elections. Certainly, no Kenyan ever rigged the 2011 elections on behalf of Kabimba. Neither Kabimba nor his Kenyan fictitious people have the capability to do so.

In case, Kabimba has forgotten. We need to remind him. The people of Zambia voted for one Michael Sata. Zambians from Limulunga to Milenge chose and gave Sata a strong mandate. Zambians thought that Sata would do them good. He would give them a constitution. They thought he would chase the Chinese invaders. They thought he would make the Kwacha stronger. They thought he would truly be in charge. To their surprise, they are having what in business we call “buyer’s remorse”. You buy something you wanted so badly, and then after you take it home, it disappoints. You then look back and think, “I should not have bought it in the first place”. This is where we are as a country with regard to Bo Chilufya Katongo.

In this buyer’s remorse, Kabimba should not mock Zambians by claiming that it is his Kenyans that brought us Michael Sata. We brought Sata on our own. And we do have a way to get rid of him in the 2016 election. In so doing, we do not need Kabimba’s fabrication. The only Kenyans I have seen, with some real capability over some Zambian men, wear traditional Maasai gear and stand on corners of Lusaka hawking stuff they promise will help, not with elections, but erections. Come 2016, they will be there to sell even more stuff to Zambian men and perhaps women. However, what they will not do is to rig any elections.

Zambians are experiencing buyer's remorse - Munshya

Zambians are experiencing buyer’s remorse – Munshya

Michael Sata’s Government of “Katwishi”

 E. Munshya, LLB (Hons), M.Div.

The nights and days are very cold this month of June. But in spite of this, the leaders of this country did not spare our people in Mindolo another brunt exercise of power. The people of Mindolo woke up, one night, to a colossal noise of bulldozers and graders tearing through the walls of what had made their homes. There was no mercy. There was no pity. And the misery was ruthless. It does seem, as expected, that the government cared less about the plight of our now homeless citizens. These citizens now have nowhere to lay their heads and no place to acquire the comfort of a warm roof. Days after this unfortunate incident, the ruling Patriotic Front, through its Copperbelt leadership, expressed comprehensive ignorance about what happened to the over 300 families of Mindolo. They claim “ta twaishibe” until the minute bulldozers were on the ground grinding down the brittle hedges around fragile homes of our people. We would be more concerned if this were an isolated incident. But unfortunately, denial has become the order of the day in both the ruling party and the government it is claiming to lead. From police brutality to the economy, President Sata’s government has most surely become a government of “katwishi”. Ask them any important question, and their answer comes from a choice of synonyms whose meaning is repugnant to human politesse: don’t kubeba, katwishi and nshishibe.

A few months ago, President Sata’s minister of agriculture had no idea that since his party came into power the price of ubunga had gone up by almost 100%. Typical of a reckless administration, the response from the honorable minister was that of total surprise and unsurprising surly indifference. He had no idea that the cost of ubunga is beyond the reach of many Zambians. One then wonders how this group of so called cabinet claim to be running a nation when they are not in touch with basic realities of how much Zambians are paying for staple food. I would be curious to find out what the minister cooks in his house, since he has no idea how much a bag of roller meal costs. May be he has an incessant supply of chicken and chips beautifully delivered at taxpayers expense. As if that was not enough, when the same gentleman visited cotton growers, he again expressed total surprise at the plight of cotton growers. He claimed “nshishibe”, “nshaishibe” or stuff related to that. Zambia must demand that leaders desist from this katwishi culture.

The leadership of “katwishi” has led us and is leading us into serious economic doldrums. The essence of katwishi finds itself manifested in a government, which has no idea, of how much money the mining sector generates each year. For example, the honorable minister of finance has no inkling of how much money KCM, First Quantum or Mopani make each year. With this obliviousness, the PF government cannot effectively assist the Zambia Revenue Authority (ZRA) to tax these companies. When citizens like Pamela Chisanga take up these issues and demand that Mopani pays, the government not infrequently pleads the “katwishi” doctrine. They claim to not know. Sadly, it seems, we have entrusted government to a bunch of persons who are so reckless as to fail to account for the income generated by our supreme natural resources. We need a cure from this “katwishi” syndrome.

Failing to effectively tax the mining conglomerates, cabinet secretary has this week, nevertheless, found an easy way out of this predicament by asking for “nchekelako” from all public universities and colleges. These colleges will now have to remit 60% of their school fee earnings to the ministry of finance. When it comes to mines, the PF gives a katwishi answer, but when it comes to helpless public colleges, it abruptly arouses to suck the littlest blood trickling from the veins of broke public colleges. Zambians should be unanimous to demand better planning from the PF government.

Government of Katwishi

Government of Katwishi

Another manifestation of katwishi concerns the soon-to-be established government airline. Honourable Yamfwa Mukanga has been quite consistent on this one. He claims that the PF government will not rest until a new government-run airline is established. He has since proclaimed that it will be launched on June 30th2014. Our government has run an airline before. It was called Zambia Airways (QZ). The reason why this airline went into liquidation was that it was a loss-making venture. It had become a personal carrier for Kenneth Kaunda and his UNIP benefactors. Without reasonable profits, Zambia Airways started to extricate taxpayers’ money to keep it in the air. In spite of this overwhelming evidence with regard to the failure of QZ, Mukanga in 2014 wants to add another expense for the taxpayers. I wonder what we shall call this airline. May be Katwishi Airline would be an appropriate name to memorialize President Sata’s popular reference of his cabinet as “useless”. The Zambian treasury is broke. Our kwacha is losing value. We basically have no money in the treasury. The government of katwishi has now mercilessly squandered the little dollars Dr. Rupiah Banda and Bo Situmbeko Musokotwane had left in the Zambian coffers. If we are to follow up on how Sata spent Rupiah Banda’s billions, we would get a hazy answer: katwishi. Since we are broke as a country, it does not make sense that we should be spending billions we do not have to buy planes for a loss-making venture.

Besides, the last time Hon. Mukanga was called upon to appoint a genuine board for a parastatal company, he appointed PF cadres to Zambia Railways. We have been there before. There is no assurance that Mukanga will handle this airline any differently from the way he has mishandled Zambia Railways. He will go on to appoint unqualified PF cadres to run Katwishi Airways and further squeeze the taxpayers. Nothing demonstrates economic folly than going back to the very practices and policies responsible for burying us in the sand of economic stagnation.

Isn’t it ridiculous that when Ms. Mutale Nalumango visited Isoka, and the police abused their power by hounding her out of there, the answer from the police command was “katwishi”? They claimed total ignorance of this abuse of power. Similarly, Nevers Mumba goes to Eastern Province, and the first thing the police do is conceitedly escort him out of Nyimba. When challenged to stop this thoughtless abuse of power, the police command pleaded total ignorance. They said “katwishi.”

Our country can do better. But in order to do so, we might need to deal with the katwishi syndrome. We can challenge this attitude now, and if that fails, we have a good shot at stopping it once and for all in 2016. The katwishi PF-government could think that they are getting away with this for now. But very soon, the Zambian people will show them who is boss. And when that day comes, the Zambian people will be decisive and flawless in rebuffing “katwishi” and all of its pretentious cousins.

On Trinity Western University’s Law School

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

Trinity Western University is a Christian evangelical school located in the province of British Columbia (Canada). Students at TWU are asked to sign a community covenant agreement that, among other things, asks students to refrain from “sexual immorality.” Sexual immorality is defined as “sex outside of marriage”. This includes “homosexual sex”. TWU defines marriage as between a man and a woman. TWU believes that it has the freedom of religion to teach its basic moral codes that define sexuality in this way. The lawyers in BC have voted to withhold recognition of a law degree obtained from TWU due to this community covenant. The vote took place on Tuesday, 10 June 2014. The main issue being argued by opponents of TWU law school is that the community covenant is non-constitutional as it discriminates against homosexual students. A detailed analysis of administrative and constitutional law arguments are beyond the purview of this article.

To date, the evangelical school has stated that it proscribes “homosexual conduct” without proscribing “homosexuals”. The principle being “loving the sinner”, but not the sin. Recently, though the Supreme Court of Canada in Whatcott did seem to discredit this view. While Whatcott was a human rights case, it remains to be seen how applicable it would be in the case of TWU. Judges in Whatcott stated that you cannot discriminate or hate people’s conduct if that conduct is one that could be done by a particular and identifiable group. According to Whatcott, you cannot hate the homosexual sin while claiming to love the homosexual because the so called homosexual sin can only be done by a particular identifiable group of people who are homosexuals. So can TWU discriminate in its covenant on the basis of “homosexual conduct”?

The Supreme Court of Canada is likely to side with TWU – Munshya

Before Whatcott, TWU in similar facts won a case in the Supreme Court of Canada when the teachers regulating agency in BC sought not to licence TWU teachers due to the community covenant. In that case the Supreme Court stated that in order for TWU graduates to be sanctioned, there has to be a clear discriminatory conduct from TWU graduates while they are in employment. You cannot say that a teacher from TWU will discriminate against homosexuals in a classroom simply because they signed a community covenant. Is the Supreme Court of Canada going to follow its own precedence? Or will it be controlled by the newer Whatcott ruling?

I am of the opinion that the Supreme Court is unlikely to rule against TWU law school. It will instead find a way to balance the TWU teachers’ case and Whatcott. In fact, they will have to narrow down the issue to the question of whether a lawyer who signs a community covenant at TWU becomes unsuitable to practice law.

Let me know what you think.

Justice Kenyatta Nyirenda of Malawi: Could his ruling shape Zambia’s 2016 vote?

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

There is no doubting that the 30th May “midnight” court ruling in Malawi has significant implications for Zambia. In 2016, Zambia is likely to face a somewhat contentious election. That being the case, we have a lot to learn from the way Malawi high court handled the electoral petition presided by Mr. Justice Kenyatta Nyirenda. I do have issues with Mr. Nyirenda’s legal reasoning. However, I also recognize that controversial as it may be, the ruling has some positive implications for Zambian courts.

Rupiah Banda visiting Malawi after the elections

Rupiah Banda visiting Malawi after the elections

Justice Kenyatta Nyirenda of the Malawi High Court was called upon to decide on at least three questions. First, he was to rule on whether to hold the Malawi Electoral Commission (MEC) in contempt. These contempt charges emanate from injunctions and counter-injunctions filed during the ballot count. Second, he was called to rule on whether the law did in fact give the MEC power to conduct a recount of electoral ballots to ascertain a correct picture of the outcome. If this second issue is answered in the affirmative, the next question was whether MEC could extend the period of recounting beyond the statutorily stipulated eight days. As fate would have it, the 8 days was supposed to elapse that Friday evening. The MEC and an opposition party, the Malawi Congress Party (MCP) had applied for this eight-day period to be extended so that a better recount of votes could be conducted.

Justice Nyirenda is a 1986 graduate of Chancellor College at the University of Malawi. President Joyce Banda appointed him as judge in October 2012. Before 2012, Nyirenda served a couple of years as Senior Legal Officer for the Southern Africa Development Community (SADC). He has also worked in legislative drafting in both Turks and Caicos Islands and Kenya.

The little background information I have provided is important in so far as it helps us to situate and contextualize the milieu from which Justice Nyirenda made his “midnight” ruling. Any court case is as good as the judge hearing it. From his reasoning we could ask better questions as to why he decided to reason a certain way.

To answer the first question, Judge Nyirenda discharged the contempt charges against the MEC. He correctly held that the applicants had not provided all the information needed to proceed with contempt hearings. The contempt charges for the MEC are quite unusual here because it does appear like the applicants had wanted to stop MEC commissioners from doing exactly what the law asks them to do: to count and recount votes after an election.

Judge Nyirenda obviously, did not want to hold MEC Commissioners in contempt and then worked backwards to find the reasons why he should not. This strategy did seem to work well. This should not come as a surprise. It would take unusual circumstances to hold a group such as the MEC commissioners in contempt of court. This is the same principle I saw working with Judge Eddie Sikazwe here in Zambia last week when he refused to cite Nevers Mumba and 45 other NEC members for contempt. Holding groups in contempt of court is too messy and judges are generally reluctant to do so.

On the second question, Justice Nyirenda answered in the affirmative. The MEC had the power to count and recount the votes. He interpreted the enabling legislation and the constitution. He then held that indeed counting and recounting of the ballots was within the perimeter of the MEC. This is a very important principle in administrative law. The power of an administrative body is primarily derived from the mothering statute.

Munshya wa Munshya

Munshya wa Munshya

Judge Nyirenda, however, left the most bizarre answer to the third question. If indeed the constitution and the statutes do empower the MEC to conduct a recount, can the MEC apply to court to have this period extended? He answered “no”. At issue here was the provision of the statute. Statute states that the MEC is supposed to announce the election results within “eight days” of an election. Since the last day of the election was May 22, the eight days were going to elapse on May 30. In ruling that the results had to be released, the judge relied on the “literal rule” of legislative interpretation. He held that since the statute says election results should be announced in eight days, there was nothing he could do as a judge to extend that timeline. He claimed that the MEC was bound to follow this timeline and announce. The judge then made a philosophical point, “As a judge my role is not to make law, but to interpret it.”

Does Kenyatta ruling impact Zambia?

Does Kenyatta’s ruling impact Zambia?

Judge Nyirenda’s holding on this third question is controversial for several reasons. First, he does not acknowledge the fact that the MEC had spent much of the eight days in court rather than in counting the votes. The judge could still have discredited some of that time so that the eight-day deadline begins to count only after his court ruling on May 30. Second, Judge Nyirenda’s ruling would lead to absurd outcomes. What good is this power to recount the vote, if it had to be done by May 30, the very day that he was delivering the ruling? Isn’t it obvious that it would be self-defeating for the MEC to be given broad power and yet have it restricted to just one hour? Third, Judge Nyirenda, as a skilled legal drafter himself, exploits the “literal rule” and relies on it to emphasize that the results should be announced within the stipulated 8-days. Perhaps, Judge Nyirenda needed to be reminded that the literal rule is hardly the best tool to use when interpreting text that has constitutional implications. The MEC was not asking for time to manufacture results. It was asking for time to verify the results. It should not take rocket science to know that the activity of verification might need a little more time, especially in the atmosphere as adversarial as that particular election.

Notwithstanding, the contentious issues concerning the third element. The positive aspect of this ruling is the fact that the court did not bow to pressure from a sitting president. The court showed independence and a clear commitment to follow the “letter of the law”. I have my own doubts about Justice Nyirenda’s reasoning. However, what I do not doubt is that Zambian judges might just find his courage insightful when their turn comes in 2016, or perhaps before that.