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).
Leave a Reply to BMJCancel reply