Monthly Archives: February 2015

Indecent Discretion: Why Nchito’s “nolle” defies both law and common sense

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

As a constitutional democracy, our republic must be led and controlled by both the written constitution and the unwritten spirit of constitutionalism. It would be ridiculous for officers of the state to go on a rampage abusing their discretion simply because the text of the constitution so says. It is dangerous to read or apply the text of our constitution without regard to important principles that undergird it. It would be wanton recklessness for our people to do stuff simply because the constitution says so. It can never be justified to do injustice to another simply because the rote text of the constitution so says. Beyond the written text, we must adhere to common sense, common sense of justice and the call of sanity rationed by a command of justice.

There are a number of officers in our republic who have been given the sacred duty to exercise discretion for the good of our democracy. This is a sanctified calling. It is a huge responsibility. Discretion is not an opportunity for selfishness, nepotism and tribalism. For example, the Head of State has discretion to choose a cabinet of her choice from among the Members of Parliament. She also has been given the discretion and prerogative to elect 8 individuals who should become members of our national assembly. The Head of State also exercises numerable other prerogatives. Indeed for our democracy to work, prerogatives must be had. Cabinet ministers also exercise some prerogatives. In some cases, these prerogatives are quite wide and often ambiguous. The Attorney General does have powers and prerogatives within her jurisdiction and so does the Director of Public Prosecutions. When it comes to the Zambia Revenue Authority Act, the Commissioner General has the prerogative to alter, change or make exceptions to taxes imposed on individuals, companies or corporations. Wouldn’t it be offensive to common sense if the Commissioner-General used this prerogative to exempt her personal companies from paying duty? If the Commissioner-General can’t be allowed to abuse her discretion in that manner, how on earth did Bo Mutembo get the guts to believe that he could walk into our sacred chambers and stop the prosecution of a case involving his own alleged criminal activities?

The exercise of state power, discretion, and prerogative is not just limited to the texts that empower these individuals. The exercise of these prerogatives is tied to the spirit of the constitution and the rule of law under whose guidance the said texts predicate. Several principles undergird the exercise of the prerogatives or discretions of state power. The first principle predicates from the idea that any officer of the republic should exercise her powers to the furtherance of the interests of the republic. Second, any one exercising state prerogatives should recuse themselves, if the exercise of their prerogatives will directly impact on their personal interest. Now there is no law that should actually say so in order for this presumption to be valid. There are so many presumptions at law that we take without having to demand that they be written before they are valid. To demand that everything in law should be written first before it takes effect would be tantamount to threatening our democratic civilization itself.

Bo Nchito has been accused of heinous crimes against individuals and the state. That being the case, we must follow through the law and let the courts deal with these cases. If not for any other reason, it should be offensive to public morality for a DPP to enter a nolle in a case that involves his or her own alleged crimes. The letter of the text of the law has given powers to the DPP to discontinue prosecutions of any criminal matter. But the law never envisaged a situation where the DPP would discontinue a matter that involves her own alleged personal crimes. However, in the specific case of Mutembo Nchito, we all should be patient enough to hear what the Magistrate Court will finally rule on the matter.

Nchito should stop hiding behind bombasa - Munshya wa Munshya

Nchito should stop hiding behind bombasa – Munshya wa Munshya

When people demand that Bo Mutembo should account for his alleged criminal activities, they should be taken seriously. Mutembo and his cartel did well to go beyond the business of running a law firm to the business of running airlines. Good for them, they diversified. However, we should be firm in our demand that those who want to run airlines, law chambers or mines should do so with a specter of integrity. Regardless of how many airplanes you acquire, if you are using stolen money, it cannot be good for the county. As we used to say in Chiwempala, “zimya neighbor” using “indalama isha kwiba” does not help in the long run. Here is what Bo Mutembo should do. Stop hiding behind the bombasa of nolle prosequi. We have had presidents in this country whose bombasa got stripped and they had to account for their alleged crimes. These presidents commanded our soldiers, ruled over the police, and all the million guns in our country quivered at their signature. What makes Bo Mutembo think that he could get away from the people’s process using a “nolle”? There have been great men and women in this country who have had their day in court. Bushe bena tabali bantu? What makes Mr. Zimya Neighbour think that he can get away with these allegations? The best way to beat these allegations is not by all this “nolle” nonsense, but rather by accounting to the people of Zambia. Zambians have some questions. Bushe indalama sha ndeke shali sha kwiba? What about the court judgment, did you falsify it? When you became DPP did you know that you had stolen “katundu” from the Zambian people? When trying to convict Chiluba and his friends, did you cook some evidence? These are some questions our people are asking. And it is only right that they get an answer even if that answer has to be whispered in court. Bo Mutembo, please save us the drama and take off that bombasa, tafiweme!

President Lungu

President Lungu

President Edgar Lungu is now Head of State. He should act quickly in matters that threaten national integrity. It is not right for His Excellency to ignore this matter when there is some evidence, at face value, that suggest some crimes may have been committed by the occupant of a constitutional office. President Lungu should not be ruling through “slow motion”. There are decisions in this country that must be made before making trips to Addis Ababa, Cape Town or Mfuwe. If he can’t act on this serious matter, we should all doubt his seriousness to fight corruption and rein in a cartel that went berserk dogging allegations of crimes, theft, and corruption.

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Suggested Citation: Munshya, E. (2015). “Indecent Discretion: Why Nchito’s “nolle” defies both law and common sense”. Elias Munshya Blog (www.eliasmunshya.org) February 2015

No Creativity, No Imagination: My reflections on President Lungu’s cabinet

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

President Lungu

President Lungu

For someone who took almost three weeks to announce the cabinet, it is rather surprising that this cabinet has very few surprises. Unprecedented in the history of our nation, Edgar Lungu becomes the first president to take 19 days to announce a full cabinet. What is equally unusual with Lungu is the fact that by the time he was taking his oath of office, he had already worked for about three years as a minister and as a Member of Parliament. So Edgar Lungu was much more familiar with more MPs than any of the previous presidents. Kenneth Kaunda had known and personally worked with most of the people he appointed as ministers in 1964, but he never took long to identify a cabinet. Chiluba had a fleeting personal knowledge of the MPs, and yet he appointed cabinet just a day after he assumed power. Mwanawasa appointed a full cabinet within days. He most certainly retained Chiluba’s ministers, but added a few individuals here and there. Rupiah Banda in 2008 also kept Mwanawasa’s cabinet but appointed a full cabinet just days after taking the oath. President Sata took slightly a week to form his team.

We can only speculate as to why Lungu took 19 days to form his full team. But looking at the ministers, it becomes quite apparent that the team offers nothing new. With the exception of a few faces, this team remains hugely uneventful.

Emmanuel Mwamba

Emmanuel Mwamba

By far, the most daring of these appointments is Chishimba Kambwili as Minister of Information. Kambwili has not fared very well in ministries that have to do with tact and diplomacy. His first job as Minister of Foreign Affairs in 2011 ended in disaster. His stint at Labour was equally uninspiring. During the run up to the elections late last-year, Kambwili stormed ZNBC studios to protest ZNBC’s editorial choice. This was when Kambwili was Team Guy Scott and not Team Edgar Lungu. It is quite surprising that President Lungu has found Kambwili suitable to take over this portfolio. The selection of Kambwili though might be sending a message that Lungu is willing to put a fighter at information who will dictate news and information for the 2016 election cycle. Kambwili has several strengths. He is a great organizer, having created the Team7500, which served as his own campaign team for Lungu in the just ended election. In addition, Kambwili has turned out to be good with social media. In fact, he used his page on Facebook to organize this Team7500. For sure, both the PF and its government would do with a good social media strategy in this age where news is being dictated by likes, tweets, hashtags and shares.

Vincent Mwale - Youth and Sport

Vincent Mwale – Youth and Sport

Kambwili’s appointment is also quite ironic. During the PF squabbles, Kambwili was quite outspoken about his disapproval of Lungu and his team. In fact, the storming of ZNBC happened during that same time. On the other side of Team Lungu was Emmanuel Mwamba, a social media and public relations guru who castigated Kambwili for intimidating journalists at ZNBC. Many expected Mwamba to play some role in Lungu’s government with regard to information, news, or public relations. It is ironic that Lungu has completely sidelined Mwamba, but goes to appoint Kambwili as Information minister. This is the same Kambwili whose behavior towards journalists was anathema to Lungu’s PR team led by Mwamba.

Vincent Mwale has been a very consistent figure in MMD politics. It is rather startling that it has taken him over a decade to be recognised as Cabinet Minister material. He has been an MP under four of Zambia’s six presidents. It has taken Lungu to recognize his leadership abilities by appointing him Minister of Youth and Sport. This is quite a great choice. I just hope that Mwale will take his zeal to cabinet just like he worked tirelessly as chair of the public accounts committee of Zambia’s parliament.

Given Lubinda was almost certainly going to bounce back. As a cunning politician, he changed sides quickly when it became apparent that Lungu was going to be the PF’s nominee. He campaigned vigorously for Lungu and he has been rewarded with a strategic portfolio – Agriculture. He takes over from one of the most inefficient ministers in the history of Zambia. Lungu has done well to do away with Wilbur Simuusa.

Michael Kaingu has been appointed Minister of Education. In 2011 Sata merged this portfolio with higher education, science and vocational training. As such, it is a huge responsibility for Kaingu. This gentleman seems to be a hard worker and he is likely to do well at education. However, his role in the MMD squabbles creates a doubt in my mind as to his judgment and character.

Lungu stated at one point that he was going to split some ministries. It seems he has backpedaled. It doesn’t make sense to have one minister take care of Works, Supply, Communications and Transport. This ministry needed to be split. I just hope that the President will go ahead with plans and streamline this ministry. Yamfwa Mukanga is a good choice for this portfolio. Education, higher education, vocational training, and science is one other ministry that needs splitting.

The following portfolios should be merged: Gender, Traditional Affairs and Community Development. They take up too much space and could be better streamlined. From the address of President Lungu it appears Professor Nkandu Luo might not take up the Gender portfolio. If she declines, it will mark a remarkable fall for a woman who was the rising star in the PF government. Her fight with Bashi Lubemba has had an effect on her plummeting relevance.

This cabinet has six women out of 21. This makes it one of the least gender-balanced cabinets in our history. It is remarkable though that the Vice-President is a woman. It has about 9 Bemba-speaking members. This makes the Bemba-block the most powerful chunk in the cabinet. It has four Easterners and three from Barotseland. Even though it has about 50% Bemba representation, I have no issues with its tribal composition. The PF remains primarily a Bemba-speaking party.

Munshya wa Munshya

Munshya wa Munshya

Lungu has taken a very comfortable posture. He has not stretched nor challenged himself. He is a lawyer and it seems this has come through the choice of cabinet, bizarrely risk averse. He has fired almost all of the ministers that did not support him during the PF squabbles. He has taken an adversarial stand. This is a bit concerning to me. As president, Lungu needed to appear like the big man that he is by absorbing a few of the ministers from the camp that did not support him. It is woeful that Kapeya, Chenda, Simuusa and Sichinga have not been retained. We know Lungu is the boss, but appointing an “adversary” would have shown his true greatness. For now, Lungu took 19 days to come up with a cabinet that lacks both imagination and ingenuity. But it is too early to tell how this team will perform. I wish them all the best.

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Suggested Citation: Munshya, E. (2015). “No Creativity, No Imagination: My reflections on President Lungu’s cabinet.” Elias Munshya Blog (www.eliasmunshya.org). 12 February 2015