E. Munshya, LLB (Hons), M.Div.
In the interest of state unity and national sanity, Vice-President Guy Lindsay Scott should either be fired or severely reprimanded so that he stops making statements that can stoke national panic. There is the sense in which Scott is trying to do anything possible to fortify Wynter Kabimba as the heir apparent to the Patriotic Front (PF) throne. I see nothing wrong with his exercise of democratic liberties: Ici kalilwa pa nsaka musumba wa bwali. However, Scott should exercise restraint and responsibility since he has picked a side in the internal battles of succession. He must desist from icilande lande. We have all been concerned at the sentiments that Scott spews out. But what he said this week as quoted in a Patriotic Front newspaper, is very disturbing. Scott stated that Mulenga Sata, Given Lubinda as well as himself are disqualified to stand as President of Zambia.
To come to this unfortunate conclusion, Scott relied on the 1996 Constitution which, in Article 34 (3) (b), states that a person shall be qualified to be candidate for president of Zambia if “both his parents are citizens of Zambia by birth or descent.” Scott used this article to buttress the position that Mulenga Sata as well as himself and Given Lubinda cannot possibly satisfy this constitutional requirement. It is believed that Mulenga Sata’s mother is of Malawian origin while Given Lubinda is of mixed race. Lubinda famously refers himself as a “zayelo”. Notwithstanding those facts, I find the Vice-President Scott’s application of law to these facts to be legally flawed and politically ridiculous.
Zambia’s constitutional law comprises several elements. Two of these are relevant here. First, it comprises the written text itself. The second element comprises the rulings of the Supreme Court, if any, that touch on the meaning of the constitutional text itself. As such, if we are to discern what the text of the constitution actually means, we must look to the text itself, and then to the Supreme Court rulings that have interpreted that text. It is not enough to just read Article 34 (3) (b) and from there extrapolate that Mulenga Sata or Given Lubinda or Guy Scott are unqualified. If that were the case, there would be no need for law schools and consequently there would be no need for courts of law. The text that “both his parents are citizens of Zambia by birth or descent” is quite confusingly ambiguous. To resolve this we must ask ourselves: what does it mean to have “both parents being citizens of Zambia by birth or descent”?
The Supreme Court answered this question. This was in an election petition case in which President Frederick Chiluba was sued by Akashambatwa Mbikusita Lewanika and others after the 1996 elections. Facts of this case are poignant. After losing the 1996 elections, Lewanika and his colleagues petitioned Chiluba’s election by alleging that Chiluba did not meet Article 34 (3) (b) of the constitution since his father was not a “citizen of Zambia by birth or descent”. It is ironic that Chiluba became the first target of the law, which observers believe was originally passed to bar his nemesis Kenneth Kaunda, and his many colleagues of Malawian descent. Nevertheless, the Lewanika v. Chiluba case provided an opportunity for the courts to interpret this provision and help clarify this “parentage clause”. And true to common sense, the Supreme Court was not very pleased with this parentage clause. Had this clause been an ordinary statute, the judges were willing to struck it down. They couldn’t because it was a constitutional provision. The only thing they could do was to provide an interpretation. And until this interpretation is overruled by the Supreme Court itself, what the judges stated in Lewanika v. Chiluba remains law today and should govern how the law should apply to Mulenga Sata, Given Lubinda or even the muzungu Guy Scott himself. To state this simply, the current constitutional law in Zambia with regard to presidential eligibility is contained in Article 43(3)(b) of the constitution as well as in the case of Lewanika and others v. Chiluba.
First, In Lewanika v. Chiluba, the Supreme Court held that a popular insinuation that the presidency is intended for indigenous black Zambians is, for a lack of a better term, “nonsense.” Well that is not what the judges said. They would not use such a language. They put it in more polite terms. As far as the judges are concerned, 34(3)(b) cannot be interpreted as to mean that bazungus and ba zayelo are barred from the presidency. Bizarrely, the Supreme Court even went on to state that a Chinese baby adopted or present in Zambia before independence would perfectly satisfy 34(3)(b).
Second, the Supreme Court held that the requirement that parents must be Zambian citizens applies to those who were present in Zambia, or could have become Zambian at independence in 1964. Essentially, regardless of where Mulenga’s mother hailed from, if she was present in Zambia on 24 October 1964 or could have become Zambian on that date, she satisfies the requirement of being a Zambian by birth or descent. Additionally, if Given Lubinda holds a Green National Registration Card and either his parent is Zambian, he would satisfy 34(3)(b) too.
Third, what is even more critical in the Chiluba case was that the Supreme Court held that even if Chiluba’s father had been the Congolese-born Chabala Kafupi or the Mozambican-born Jim Zahare, it would not matter as long as these gentlemen were ordinarily resident in Zambia in 1964 or had “belonged to Northern Rhodesia”. Belonging to Northern Rhodesia was given a wide and generous interpretation covering indigenous tribes as well as Europeans or Chinese. Here is a quotation from Chief Justice Nglulube:
“…there were no Zambian citizens as such prior to independence and that Zambian citizenship and nationality only commenced on 24th October 1964. This assertion which we accept as technically and legally correct means that the constitutional provision regarding parents or anyone born prior to independence who are or were Zambian by birth or by descent can meaningfully only be construed as a reference to those who became Zambians on 24th October 1964 or who would, but for their prior death, have become Zambians on that day.”
If Guy Scott has surrendered his birthright to Kabimba he should find other reasons for justifying it rather than try to insinuate that Mulenga and Lubinda, bonafide citizens of our country, cannot possibly aspire to be president. If Zambians want Mulenga Sata to be president he should be welcome to aspire to this office. He certainly appears to be more decent than this unloved gentleman Scott is trying to shove under our throats.