E. Munshya, LLB, LLM, M.Div.
His Excellency Emmanuel Mwamba, High Commissioner of the Republic of Zambia to the Republic of South Africa has applied to the ruling Patriotic Front to be considered for adoption as a parliamentary candidate in Matero. Mr. Mwamba’s political background is very well known. He was the principal architect of candidate Edgar Lungu’s media strategy in the 2015 presidential bye-elections. Shortly after those elections, President Lungu appointed Mr. Mwamba into the civil service and sent him into the diplomatic service. Mr. Mwamba hesitated a great deal as he had set his sights on a political office. President Lungu had his way and Mr. Mwamba was made to reverse his political push for the Kasama seat and leave for Pretoria. Civil servants in Zambia are not supposed to do open partisan politics. This is simple common sense. The only people who can do open partisan politics in Zambia are the politicians: the president, the vice-president, the cabinet and all the other political officers. Ours is a political system where politicians supervise what should be a politically neutral civil service, security service and the army. This is not to say that civil servants cannot support a political party. They can, privately in their hearts and homes. However, they cannot publicly announce to the world that they are aspiring to stand on MMD, PF or UPND.
News of Mr. Mwamba’s application for adoption in Matero has received a great deal of attention. Some are arguing that Mr. Mwamba must resign from the civil service since he has shown open preference for one political party. Others, like Mr. Mwamba himself, are claiming that the constitution does not forbid a civil servant from applying for adoption as a candidate. I must differ with Mr. Mwamba’s take on this issue and ask him to resign his position as a civil servant immediately. I urge him to resign not because he has applied to stand in Matero, but because of the manner he has done it. He has openly shown his political preferences for a political party and a civil servant cannot and should not do that. If we are to follow Mr. Mwamba’s logic then we should expect soldiers and all the people in the public service to openly apply for adoption in UPND, MMD, PF, and FDD and publicly campaign for adoption. What would follow if that were allowed would be kerfuffle. My position is that a civil servant cannot openly apply for adoption or publicly state their political preferences while actively working in the public service.
Mr. Mwamba argues that he cannot resign because the constitution says a civil servant should only resign after they have filed in official nominations with the Electoral Commission of Zambia. Mr. Mwamba is wrong.
Using the constitution to justify his unethical conduct should not be tolerated. Nowhere does the constitution explicitly say that teachers and head teachers must not steal, should they go on to steal because the constitution does not address theft by teachers?
This obsession with the constitution is a false comfort in our country. We do not need the constitution to know that it is immoral and unethical for a public servant to publicly show their political party of choice or preference. Our republic would be chaotic if we allowed what Mr. Mwamba is justifying to go on unabated. I cannot imagine army generals and police commissioners applying to stand as candidates in PF or UPND while they actively serve.
This must now bring me to what the PF should have done. I am quite conflicted at the actions of the ruling Patriotic Front. These nominations that the PF has conducted in the country that publicly flaunts public servants is very bad for the country and for the party itself. If it is openness they wanted, this is not openness, it is recklessness. There are several good people in our country who would like to serve their country and aspire for political leadership without such initial parading of their candidature. What should have been done with Mr. Mwamba was perhaps for him to privately express interest in the Matero adoption and then work in the background for his adoption without having to dent the public of perception of public workers who must keep their politics private.
If a civil servant publicly does what Mr. Mwamba has done, they must leave the public service and concentrate on the political battle. Public servants cannot have it both ways.
If Emmanuel Mwamba does not resign from the public service on his own, President Lungu has the constitutional and ethical duty to relieve Mr. Mwamba of his job in Pretoria. That way, President Lungu will be levelling the playing field and sending a clear message to civil servants that while they have the right to privately support and even vote for a political party of choice, they cannot openly tell the whole world which political party they support and certainly they cannot openly go to political parties and run for political offices. If Lungu does not have a problem with Mwamba’s behaviour, then he should not have a problem when soldiers, police, and other public officers go to the opposition UPND and seek to run in Chawama and Itezhi Tezhi.
OUR PRESIDENT IS A PROBLEM IN POLITICS OF ZAMBIA
ALREADY HE HAS FAILED TO PROTECT THE CONSTITUTION
BY ALLOWING THE ECZ MISLEAD THE PEOPLE OF ZAMBIA ON THE GRADE 12 OR EQUIVALENT ISSUE.
THE CONSTITUTION IS STRAIGHT AND NO CONDITIONS ATTACHED
BUT HE IS WATCHING THE ECZ WITH HIS CLOSED EYES.NO WONDER MR MWAMBA HAS THE COURAGE TO MISLEAD THE NATION.
Thanks for your effort, Munshya. The main weakness of your article is your failure to cite any legal provisions that back your interpretation. My understanding is that you write as a lawyer and I had expected you to back your claims with reference to the Constitution. You did not do that. For a lawyer, I find that unacceptable and disappointing. As it is, what you have written is a moral treatise than a legal account. Next time, please try to do better.
Nonsense. Emmanuel Mwamba’s problem here is not a legal problem, but a practical and ethical problem. The law does not stop him, morality, common sense and simple ethics do. If Mwamba does this, what stops other civil servants from aspiring to run on UPND ticket? Those are the questions I am trying to deal with. I write what I write on this blog. It is not a court of law. If Mwamba wants to be a politician let him be. I have no problem with that. In fact, I have always argued that Mwamba would be a great value to the political cadre of our country. But what is happening here is ethically wrong.
Emmanuel Mwamba’s problem is actually a legal one. Article 186 (1) of the amended Constitution, which was intended to cure the issue of participation in politics, states that “A public officer who seeks election, or is appointed, to a State office shall resign.” The question is: at what point is a public officer considered to be SEEKING election to public office? Is it when he or she applies for nomination at party level (which still amounts to participation in politics, from which civil servants are barred) or only after they are adopted? Isn’t SEEKING election a process that begins the moment when one applies to be considered for adoption at a political party level?
My understanding is that seeking an election is not an outcome; it is a process that begins the moment when one applies for adoption at party level. Put differently, applying for consideration is the first step towards seeking election to public office. The next step is adoption at party level, then filling-in of nominations, campaigns and then elections. Ordinarily, one cannot seek election without campaigning. And one cannot begin to campaign without a valid nomination. And one cannot file for nomination without being adopted at party level, unless they are independent candidates. And one cannot be adopted at party level without submitting an application for consideration. You see, this thing is a process, Munshya! Nonsense is your claim that Emmanuel’s problem is only practical and ethical, not legal. At the very least, a legal interpretation of the quoted Constitutional provision will be required to determine Emmanuel’s case.
Over to you Bwana.