E. Munshya, LLB (Hons), M.Div.
The President of the Republic of Zambia, Michael Chilufya Sata has died. He died in a London hospital on 28 October 2014. Sata died the same week that the nation was celebrating 50 years of independence from Great Britain. The question grappling the nation right now is whether the nation’s Vice-President Guy Lindsay Scott satisfies the constitution to be an Acting President for 90-days before calling a special election to replace Michael Sata. The complication with Guy Scott is that his father and mother are Scottish. In fact, Guy Scott is perhaps the only white Vice-President across the African continent. According to the Zambian constitution, one can only satisfy the constitutional requirements to be a presidential candidate if both parents of the candidate are “Zambian by birth or descent”. There are two sides to this issue: those who argue that Scott does not satisfy this requirement and those who argue that he does. In order to shade light on this issue, I must begin with some boring yet important stuff.
According to both the written and unwritten principles of the Zambian constitution, the Supreme Court and the High Court of Zambia are the primary interpreters of the constitution of Zambia. This means that if there is any ambiguity in the constitution we should look to the court’s interpretation for guidance. In this constitutional set-up, the written constitution of Zambia and the ruling of the courts of law, together comprise what we should refer to as “constitutional law”. Constitutional law seldom refers to the text of the constitution alone. In most cases, the constitution is sometimes vague and some concepts such as “parent” or “Zambia” need further illumination and explanation. According to stare decisis, courts are supposed to follow the precedence set by the higher court in a hierarchy. Of principal importance in our judicial system is the idea that the courts of law do in fact play a huge role in interpreting the law and their rulings become binding. In stare decisis, if the ratio decidendi of one case can sufficiently be applied to another case, we have the obligation to follow the ruling of the precedent. With these boring principles in mind we can now turn back to the Guy Scott issue.
The constitution of Zambia is clear. For one to be a presidential candidate in Zambia, his or her parents must be Zambian by “birth or descent”. The question is what does this mean? It could mean many different things to different people. However, if the Supreme Court answers the question of what this means, it should settle the matter. This is because this is the system we have chosen for ourselves. It is our rule of law. It is the way we handle contentious issues. We take it to court and the courts give us an interpretation. In 1998, the Supreme Court answered this same question. In Lewanika and Others v Chiluba, the court was asked to disqualify Chiluba from the presidency because his father was “not a Zambian by birth or descent”. The petitioners presented several versions with regard to Chiluba’s father. There was a Zairian Chabala Kafupi and the Mozambican Jim Zahare. Chiluba the defendant offered an alternative version of his parentage and claimed that his father was actually from either Kawambwa or Mwense. But that is beside the point. The Supreme Court assumed the facts as avowed by the petitioners and ruled that even if Chiluba’s father were a Zairian or a Mozambican; Chiluba would still satisfy the constitutional requirement of having parents being “Zambian by birth or descent”. The ratio decidendi, or the reason for the ruling is based on several principles. First, the Supreme Court erected a wall of citizenship and held that the republic of Zambia was actually created on 24 October 1964. Having been so created on this date, those who were ordinarily resident in Zambia on this day became citizens of Zambia. For such people, there is no need to inquire into the citizenship of their parentage, as none of their parents would qualify as “Zambians” because there was no nation called “Zambia” before that. Second, the Supreme Court ruled that the requirement for “Zambian citizenship” might make sense later in the history of Zambia. But even then, it would still create problems for the future of Zambia. Third, the court then dealt with racial issues. They made it clear that an assumption that the constitution deliberately discriminates against whites or Chinese does not make sense. In order for such an assumption to be made, the constitution should explicitly state that. Having explicitly not isolated one tribe or one colour, the court could find no justification in upholding this discriminatory part of the constitution especially as far as presidential eligibility is concerned. Fourth, having been cognizant of the political rhetoric that accompanied the “parentage clause” enactment into the constitution, the court relied on the actual text of the constitution, embraced its absurdities and offered an explanation that was consistent with Zambian history and principles of fairness and justice.
After the ruling in Lewanika and others v Chiluba, the question is whether the ratio decidendi of the case can be sufficiently applied to Guy Scott’s situation. Guy Scott was born in the then Northern Rhodesia, and acquired Zambian citizenship at independence in 1964. Having so acquired that citizenship, there is a legal wall that makes the citizenship of his parents invisible and inconsequential to his legal status as a founding citizen of Zambia. Additionally, even if his parents continued being citizens of Britain, it should not affect his own satisfaction of the Zambian constitution since the “Zambian by birth or descent” requirement does not apply to him and to many others who became citizens of Zambia when the nation was created in 1964. Following the Chiluba case, it is clear that just like Chiluba satisfied the constitution in spite of the possibility of a Mozambican or a Zairian father, Scott would also satisfy the constitution in spite of his British father. The Guy Scott case has facts, which can meet the ratio decidendi of the Chiluba case.
Having offered this legal explanation. I must confess that there is more to life than just law. While Zambia remains a nation ruled by law rather than men, it is incumbent upon the leaders and the people to find a political solution to some contentious issues. Those who do not want Scott to lead a transition should do so without unnecessarily abusing the law as justification. The law is definitely on the side of Guy Scott. I am not too sure though whether the politics are on Scott’s side. I have tried to answer the legal question. I will leave it up to the cabinet and the people of Zambia to answer the political question. At the end of the day, our nation should stand as one during this time of transition. May the soul of Michael Chilufya Sata rest in eternal peace.
Note: Those seeking specific legal advice should consult members of the Zambian bar. I am not a member of the Zambian bar. I am in the process of applying for a student-at-law status in the jurisdiction of Alberta, Canada. I hold an LLB (Honours) from England and have completed all coursework towards the award of an LLM degree from Northwestern University (Chicago, IL).
Suggested citation: Munshya, E. (2014). After the cobra: what does the law say about Vice-President Guy Scott? Elias Munshya Blog. (found at http://www.eliasmunshya.org) (28 October 2014).
your article is well structured. it give a good background about the historical facts and principles around the Zambia as a nation and the correct interpretation tools on in its constitutional law.
One thing that I take away from the article is that politics influences the law,more so constitutional law.
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Touche. Solid arguments. Keep up the good work.
Well articulated piece, We will wait for the finall interpretation by our courts. Am pretty sure scott will be given the mandate to rule.
here we are having our ow constitution explained to us by someone from abroad and believing his explanation .what type of independence did we fight for if we are still being told what to do ,having our laws interpreted by people who face no effect after its all said and done .if. The constitution says both parents must be zambian so be it so what if chiluba managed to corrupt the system does that mean if God put you in adams and eves postion with all you know that you would repeat the same mistake believing that one day Jesus would come and die for you .No two wrongs will never make a right ,its our constitution so if we don’t stand up for it who will let’s uphold our law otherwise there is no law if anytime we feel obliged to some power hungry man we just weaver the constitution because he makes us smile
Best Decision is to let Guy Scott to run for President and see the nation of Zambia Transform in a way you have never seen!
Very thought provoking piece. I must say, based on the Law and Interpretation of the Chiluba case, its hard to argue with your analysis. As merely a citizen and a non-lawyer, i would rather the supreme court made a clear definition of what being Zambian by decent means, or should i say, what the meaning of that phrase was in the mind of those that were drafting that piece of legislation. Whilst the precedence was set in the Chiluba case, to raise the wall, as you put it sounds more like avoiding to really critically analyse and guide as to what being “Zambia by descent” meant in the mind of those drafting.Whilst the supreme court has the final say and their position in the Chiluba case is precedent, the supreme court now has the chance to remove ambiguities that remained unclarified to the common citizen like myself
It’s very clear that the President left Zambia under article 39(1) of the constitution, that is:’absence due to illness’ and handed over the instruments to Edgar Lungu to act. Lungu needed to hand over power to the President when he returns or to a substantive President within 90 days. Here the constitution doesn’t talk about the acting President handing over to the Vice President.
My brother choosing the acting president is the prerogative of the president.The law says vice president shall take over.Edgar lungu is not vice president and hence no where in the picture.His holding acting as president is actually annulled by the method of Sata leavijg office which only qualities the current vice president.
quite enlightening… too many opinions though. I guess it draws back to what the high and supreme court to make the decision.
You raise an interesting eye raising point about Zambia having been created at independence however what you omit to refer to is that there are rules of legal interpretation (based on British common law rules applicable in most commonwealth countries) which are taught to law students in law school as rules which guide how provisions of laws and agreements are to be interpreted. One of the rules (Golden Rule in particular) that could be applied in this case, without going into technicalities, is looking at the intention of the drafters for including the ‘parentage clause’ i.e. Article 34(3)(b) into the Constitution (notably after independence). To avoid the absurdity that literal interpretation may pose and which you raise. So in this case the intention was that the clause would (a) apply to the territory that is now known as Zambia before and after independence; and (b) capture Zambians or people not born in the territory now known as Zambia. So the constitutional provision may still exclude those presidential candidates with parents who were not born in the territory now known as Zambia before or after independence. [So your parents must have born in the territory now known as Zambia regardless of whether it was before or after independence]. I am not saying the reasoning behind the intention to exclude is right. I am just saying the absurdity created by the literal interpretation of Article 34(3)(b) is curable at law using the rules of interpretation.
CNT..u have just added more confusion and I think mostly you jist rephrased what munshya said.Legally speaking he is dead right,except politically,odds might not favour Guy Scot.
The truth is I do not agree with you as the racio decidendi in the case of fredrik chiluba can not be compared with the guy scott situation. Why am I saying so? When you read the full case of Chiluba you will discover that it was argued wether chilubas parents were Zambians or not n oso if chiluba himself was also a Zambian, following the independence act of 1964 and the order in counsel also yes it was stated that any person who is a british protectorate citizen and also a citizen of northern Rhodesia as well as north eastern Rhodesia would be deemed to be a citizen of Zambia by 24th october 1964.
Following the case of chiluba, three fathers were said to be chilubas parents as chiluba was born out of wedlok but after all the findings it was contended that the iligitimate father of Chiluba was kafupi who was aleged to be from Zaire n not Zambia, but after all the findings it was discovered that kafupi chilubas father was conceived in northern Rhodesia where his parents were born but he was born in Zaire. This fact of kafupi being born in zaire did not make him seize to be a Zambian because his parents were born in northern Rhodesia n therefore this made kafupi a Zambian by virtue of his parents being Zambian following the independence act of 1964 and the court ruled that kafupi was Zambian as he also possesed a green national registration card which is isued to Zambian citizens who satisfy the requirements of the registration act, Thus kafupi was deemed to be a Zambian and the petition was dismissed making Chiluba a suitable candiadate for presidency. Guy Scott can only qualify to act as president following article 38 clause 2 of the republican constitution
The full case of chiluba is to be understood before compared to the scott situation its very much totally different. The racio decidendi in chilubas case was based on the fact tht by virtue of kafupis parents (chilubas grandparent)s being british protectorate citizens following the independence Act of 1964 and the order in council, it directly implied that his father kafupi was oso a Zambian by decent regardless of him being born in congo because his parents were Zambians by birth as they were born in northern Rhodesia n not Zaire the then congo n wen kafupis parents (chilubas grandparents)were traced to the village in congo were they were said to have originated from they were regarded as foreigners by birth because they were born in northern Rhodesia n not Zaire. So Chilubas parents were very much Zambian n they also posesed a green national registration card n wen u look @ the requirements of the registration act if kafupi was not Zambian he wouldn’t have atained the NRC.
You only bring in Kafupi. What about Jim Zahare, the Mozambican? Does it really matter? On the NRC issue, this very court case is authority for the proposition that an NRC does not confer citizenship at all. And so if Kafupi was a citizen, then why not Guy Scott? And perhaps his parents?
Why then wasn’t he acting even before the death of the president???
A respectable contribution and I agree with it. Thank you and good luck with your coursework at Northwestern.
Kanabesa ba Rodger Chongwe, natotela.
I appreciate your argument and your legal argument however I must confess I find it simplistic because I feel you have failed to discuss the disparity in precedence because in this case The argument is not simply whether he is of Zambian lineage but also how the fact that he was never awarded the instruments of power as acting president possibly because of the aforementioned facts and at the time of the presidents death he was not acting in the capacity as Vice President, Edgar Lungu was in fact – so the question is how do these factors affect his assumed position? Surely as you have suggested the superme court should have taken more time to consider whether under these circumstances it could be accepted that the VP as stated in the constitution is Guy Scott or acting president Edgar Lungu?
The fact that is he was not once apppointed to act is besides the legal issues raised here.
Thanks Elias, as usual for your insightful, balanced and faithful account on the shifting and often inderminable tectonic plates that is Zambian political and legal authority. Gratitude. And as a zambian in the diaspora I echo my condolences to our wonderful country. Let constitutional supremacy and sobriety rule as we posture for a successor
well articulated…makes a lot of sense and will obvously clear a bit of dust of this issue
I’m really impressed, this is so well put together. like a true lawyer
It’s precedent not precedence. If Zambian constitution allows citizenship by birth or residence… Guy Scott will be the interim President for 90 days and can run for that office himself.
Africans have other countries’ citizenships but don’t want others to have theirs! Why?