Monthly Archives: May 2016

Mixing Tobwa with Munkoyo: Have Malawian Voters Invaded Zambia?

E. Munshya, LLM, MBA, MDIV.

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Kenneth David Kaunda

Reports that Malawians have invaded Zambia to vote should be evaluated within the ambit of history, for without such an analysis we will become rumour mongers and liars who want to create a storm in a cup of tobwa, the east’s favourite drink.

There are no Malawians that are invading Zambia to vote, or whose vote could sway Zambian elections. To suggest otherwise is to be disingenuous to the patchwork character of our founding as a nation. With that in mind, I am not calling for lawlessness and neither am I saying that borders are not important. We obviously do have political borders, which were created not by us, but by Queen Victoria and her team of magicians. Contrary to what many of our people believe, the current geographical area we call Zambia was drafted not by the Africans, but by the Europeans. Baishile twebafye ati, you see those hills across? That is a different country and territory.

Europeans did not care about anything, other than negotiating among themselves which peoples will belong to Victoria and which territory will be stolen by Leopold II. The Scramble for Africa which took place centuries ago, still has an effect on current nation-states. In 1964 and during the independence struggle, Kaunda and his friends did not make matters easier. They complicated stuff to the extent that they started searching for pure breed Zambians in a country that could not produce pure Zambians, and in a Zambia where Kaunda himself failed the test of a pure breed. Earlier, with the stroke of a pen from Belgium, the Aushi commonwealth got divided some for Leopold II and others for Victoria. In Chipata, the same happened, across the hills, one people got divided into two, or perhaps three to create a united nation with a people stranger to the others. The most challenging aspect of African independence was the failure by new states to redefine the concept of citizenship in a way that redressed the colonial definitions of a Scrambled continent.

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Elias Munshya, LLM, M.A., MBA, M.Div.

Ifwe kwesu ku Luapula twalibako nabwino. At least, palibako icimana ica putula Congo na Zambia. However, for our relatives abena Chipata, abena Mwanga, Malawians and Tanzanians, it is worse. There is no identifiable landmark or natural demarcation that separates territories. May be a hill at Mchinji? In Nakonde, I understand that you can have one leg in Tanzania and the other in Zambia. At Tunduma, you just go through a small kantemba and the other side is literally a foreign country. Except for a few soldiers and some road signs, there is nothing that inherently demarcates and distinguishes Zambian soil from that of her neighbours. Indeed, as a birth defect deeply rooted in our founding as a nation, we shall for the foreseeable future continue to live in an absurdity of citizenship particularly for those relatives of ours who live in neighbouring towns and villages. These people I call inter-border voters. No one can bring closure to this Victorian impediment in our national character. No matter how hard we try, we will never be able to figure out with scientific accuracy the citizenship status of some Zambians who live in towns and villages close to our neighbours. Navigating through the challenge of bordering towns does not just require knowledge of the law, it requires knowledge of diplomacy and the ability to ignore trivial insignificant things that have no bearing on the subsistence of our republic.

To date, our relatives in bordering towns still make legitimate claims to citizenship in both countries. Some villagers in Malawi do cross into Zambia and register as voters and vice versa. At Mokambo, Zambians who have for decades lived on the Katangese side of Mokambo do cross over into Zambia to register and to vote in Zambian elections and some of them do vote in Katangese elections as well. In those bordering areas between Angola-Zambia, Tanzania-Zambia, Zimbabwe-Zambia and several other bordering areas, the situation is the same. We have a few villagers who could so easily identify with either of the countries. This number of people is very small and cannot affect the outcome of general elections in Zambia. Typically, inter-border voters in Zambia tend to favour the ruling party. For the Mokambo ward in the 2011 elections, the then opposition PF candidate lost the council election partly because the inter-border Zambian voters did not like candidate Sata’s vitriol against them.

The Electoral Commission of Zambia (ECZ) faces a statutory hurdle when it is registering voters. When a person produces a green national registration card (NRC), ECZ does not have the powers to deny registration of such a citizen. The NRC is a prima facie document that proves that a particular person is a registered citizen. The challenge is even greater in bordering areas where inter-border Zambian citizens live. It would be patently unfair for ECZ to refuse registration of a Zambian who lives at an inter-border area such as Mokambo or Mchinji. It is also difficult, if not impossible for ECZ to refuse registration of a voter who lives in Mchinji but shows up with a valid NRC in Chipangali. The ECZ is not competent to confer or disconfirm citizenship on Zambians. Mulomo for anybody to somehow suggest that a Zambian inter-border voter who lives in Malawi is by virtue of living in Malawi not Zambian enough to vote. There is a small number of inter-border Zambians who will always challenge our penchant for umulomo no bufi. Those few so called Malawians should be left alone to vote freely in our country.

If indeed, someone has evidence that these inter-border voters have absolutely no claim to Zambian citizenship, the state and the civil society have the right to arrest those few who do not qualify to be Zambian and prosecute them. But to paint the picture that all inter-border voters are foreigners is wrong and patently unreasonable given the history of the founding of this great nation – the founding deeply rooted in the wishes of Queen Victoria and her team of Scottish magicians.

No one should lose sleep over the alleged invasion of Malawians.


Suggested Citation: Munshya, E (2016). Mixing Tobwa with Munkoyo: Have Malawian Voters Invaded Zambia?. Elias Munshya Blog (www.eliasmunshya.org) (May 28, 2016)

Commentary on Justice Sichinga’s Ruling in the Grade 12 Requirement Case

By E. Munshya, LLM, MBA, MDIV. (Barrister & Solicitor)

On May 10, 2016 at Kabwe Justice Dominic Y. Sichinga issued his decision in the Sibongile Zulu v. Electoral Commission of Zambia and Attorney General case. I provide an analysis of the decision using a question to answer format.

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Elias Munshya, LLM, M.A., MBA, M.Div.

Why was the case decided in the High Court instead of the Constitutional Court? The 2016 amendment to the Constitution of Zambia has created the constitutional court as the court of competent jurisdiction to hear and determine constitutional issues. However, establishing the constitutional court on paper is far much easier than actually operationalising it. Even if President Edgar Lungu has already sworn in the new judges of the constitutional court, the court is yet to sit because it takes more than judges to run the judiciary. You need courtrooms, reporters, clerks, paper, ink, toner and broom sticks. To avoid leaving any gap in constitutional litigation, the Chief Justice of Zambia, as the head of the judiciary, issued a judicial directive stating that as the country awaits the operationalisation of the constitutional court, constitutional issues will continue to be heard the same way as previously: through the high court. That being the case, there was nothing illegal or irregular about Justice Sichinga of Kabwe hearing the Sibongile matter.

What was at stake in the case? The case was brought by a woman, Ms. Sibongile Zulu who had the intention to stand for political office. She has some GCE education and a diploma from the Chartered Institute of Purchase and Supplies (CIPS). According to the guidelines issued by Electoral Commission of Zambia, Ms. Zulu would not qualify to stand as a candidate. Justice Sichinga was asked to decide three questions.

  1. What is the meaning of grade 12 or its equivalent as a minimum academic qualification?
  2. Does Article 70 of the constitution prevent the nomination of a candidate who does not have a grade 12 but holds tertiary qualifications?
  3. Which body has the responsibility to determine the credibility of the tertiary institution and qualification?

These questions arose, not really because of what the constitution says, but rather how the Electoral Commission of Zambia and the Examinations Council of Zambia chose to interpret the constitution. Had both ECZs been a little more reasonable in their opinion of the constitution, this case would not have even gone to court. So in this dispute, there is what the constitution says, how administrative bodies interpret what the constitution says, and a citizen who challenges what the administrative body contends is the correct interpretation.

Did Justice Sichinga rule that G12 qualifications have no value? Again, we must say no. Justice Sichinga’s role was very limited. He was not ruling on the academic value of a G12 certificate. He was merely making a ruling as to what the constitution means when it states that the minimum academic qualification is the G12 certificate. Justice Sichinga was not trying to categorically quantify or qualify what is good education and what is not. The question was simple: having regard to the purpose of having minimum education standards for parliamentarians, would a person like Ms. Zulu be excluded from running for office?

Why did Justice Sichinga go against the Grade 12 Requirement? Justice Sichinga has not gone against the constitution’s grade 12 requirement. If the constitution had stated in explicit terms that Grade 12 was “the” only qualification for office, Judge Sichinga was not going to disturb such an unambiguous provision. In the case of Article 70, however, it was couched in the language that left a wide spectrum of qualifications and on that basis a woman like Ms. Sibongile with a stellar record in business and life, would satisfy that spectrum of qualifications.

Can a person have tertiary education if they do not have Grade 12 certificate? Justice Sichinga answered this question by referring to affidavits filed by both the Examinations Council of Zambia and the Zambia Qualifications Authority, Zambians do go on to further tertiary education even without G12 certificates through flexible entry schemes such as mature entry. The mature entry scheme admits adults into university or college based on practical experience and not G12 qualification. It is ridiculous to suggest that university degree holders who went to university without having passed G12 would be disqualified from becoming members of parliament. In fact, under the rules both ECZs issued, Kenneth Kaunda, Simon Mwansa Kapwepwe and Harry Nkumbula would not qualify to be MPs. What nonsense! KK went up to grade nine and then went on to Chalimbana to train as a teacher. If we are to follow ECZ guidelines, KK would not meet the G12 guidelines. This is where the law comes in to provide an interpretation: would a person like KK be disqualified? Isn’t KK’s education superior to or at least equivalent to Article 70’s grade twelve requirement?

Can Sichinga’s decision be reversed on appeal? In litigation, there is an important factor that must be considered before a party goes to court, and if they go to court, whether they will appeal a decision. Litigators must ask themselves not what the law says, but rather how would a judge look at this matter? Contrary to popular belief, stories win court cases. Initially, both ECZs should have listened to Ms. Sibongile so as to avoid going to court. ECZ should have asked themselves, how would a judge look at this case? Ms. Sibongile had a very good case to make out and definitely had a story that could attract the attention of any justice. If ECZ appealed this decision, they would lose again on appeal. I just cannot see any Supreme Court justice reversing Sichinga’s decision. Supreme Court justices such as Mumba Malila, Ireen Mambilima and several other judges have shown themselves to be very much alive to current social issues particularly with regard to gender equality, I cannot just imagine them reversing Judge Sichinga and ruling that Ms. Sibongile is disqualified from running for office.

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Citation: Munshya, E. (2016). Commentary on Justice Sichinga’s Ruling in the Grade 12 Requirement Case. Elias Munshya Blog (www.eliasmunshya.org). May 26, 2016.

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A print version of this article appeared in the Munshya wa Munshya column weekly column of May 20, 2016

 

Cabinet After Dissolution of Parliament: Towards a theory of Zambia’s constitutional law

E. Munshya, LLB, LLM, MBA, M.DIV.

The subject of the constitution of Zambia can be confusing to experts and laymen alike. To avoid some confusion, I will use the term “1991 constitution” to refer to the original Mvunga constitution of 1991. Actually, the current constitution in force in Zambia is the 1991 constitution. However, this 1991 constitution has undergone at least two major revisions, the first one was in 1996 and the second one being this year in 2016. I will thus refer to the 1996 amendment of the 1991 constitution as the 1996 constitution and the 2016 amendments will be referred as the 2016 constitution with the understanding that we are actually talking about the 1991 constitution as amended.

Zambian constitutional law comes from several sources. They are as follows:

  1. The written constitutional text itself.
  2. The laws promulgated by parliament.
  3. The rulings and decisions of the High Court and the Supreme Court of Zambia. As stated in the 2016 constitution, both the Court of Appeal and the Constitutional Court will become part of these influential courts. Court rulings become part of Zambia’s constitutional law and through a dry principle known as “stare decisis”, lower courts are supposed to follow rulings from a higher court in the hierarchy. Decisions of higher courts in Zambia are binding on all other courts.
  4. The constitutional conventions (or constitutional intambi to use a Bemba term). Conventions are really about common practice and tradition (how things have just been done or accepted to be done). There is some debate, however, about just how influential constitutional conventions (intambi) are for a country like Zambia that has a written text for a constitution. I shall return to this later.
  5. Commonwealth practice and the Westminster model of law and governance. Commonwealth practice provides the philosophical underpinnings of our laws and politics and can be used to fill the gaps in our constitutional worldview.
  6. Textbooks of constitutional scholars, or may be bloggers too (www.eliasmunshya.org should be an excellent choice!). These scholars might include Zambian eminent  constitutional lawyers such as Muna Ndulo, Kenneth Mwenda, Mumba Malila, John Sangwa, Patrick Mvunga and Mulenga Besa. It is not surprising that most quoted scholars in Zambia remain British legal ancestors such as Lord Diplock.
  7. There are several other sources, which one can glean from a good textbook on constitutional law or from law school.
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Elias Munshya, LLM, M.A., MBA, M.Div.

The question of whether it is constitutional for the cabinet to remain in office after the dissolution of parliament requires a subtle analysis of not only the written constitution but other sources as well. At close inspection, we will discover that in actual fact some of the things we have done in the past with regard to cabinet members relinquishing office, has not been based upon positive constitutional text, but rather upon convention and to some extent court rulings. In the 2016 constitution era, we might need to re-examine what has been our practice in the 1996 constitution era.

From the Westminster and commonwealth perspective, ministers are not expected to relinquish their positions after the dissolution of parliament. In fact, it is expected that the state (and its political supervisors) must continue to subsist after parliament is dissolved. From England to Canada and to Australia it is the practice that cabinet ministers will continue in power after parliament is dissolved and elections are called. However, Zambia became an exception, within the 1996 constitutional era, when by convention (intambi) it was expected that after the expiry of a parliamentary term, cabinet ceased to function as well. I checked the 1996 constitution, and there was no positive article in that constitution that stated that upon dissolution of parliament ministers lost their positions. It was nevertheless accepted more like a constitutional convention and the courts, in fact, reinforced this convention by requiring that ministers step down from their ministerial position on the day parliament gets dissolved for elections. The only exception the courts made was for the position of Vice-President which was interpreted to be a “transitory” office. So two elements; both convention and court decisions, made Zambia become the exception to the commonwealth common practice of retaining a cabinet during an election campaign period.

In the 2016 constitutional era, however, it does seem like the 1996 constitutional conventions and court decisions may have been altered. Articles 116 (3) (e) and 117 (2) (d) of the 2016 constitution state that the office of minister shall become vacant if “another person assumes the office of President”. This terminology gives the impression that as long as President Edgar Lungu is in power, even after the dissolution of parliament, his ministers will still hold office until “another person assumes the office President” on August 11, 2016.

It is not unusual to take this interpretation and I would not fault those who believe that this is what 116 (3) (e) and 117 (2) (d) state. Those holding that we must carry on with the 1996 practice do so based on a constitutional convention we allowed and which was affirmed by several court rulings on this matter. Since the written text of the constitution is superior to all other sources of the constitution in Zambian law, it would appear that Lungu’s ministers may use the explicit terminology in the said articles in the 2016 constitution, plus commonwealth practice, to buttress their position to sit in the ministerial office until August 11. If this matter went to court and the court ruled on Article 116 and 117, that ruling will form part of Zambia’s constitutional law and Lungu’s ministers will either leave office or will be confirmed to stay until August. In my opinion, there is no need to take this matter to court. It would be a sheer waste time and resources. The written text of the 2016 constitution seems to be quite clear: Lungu’s ministers will vacate on August 11, 2016, that is if Hakainde Hichilema gets elected to the office. Having ministers continue during this election campaign does not necessarily mean that they will abuse government resources, and in fact, we still have other statutes to ensure that ministers do not abuse government resources.

Important Note: The author and owner of http://www.eliasmunshya.org is a Zambian practicing as a barrister and solicitor at West End Legal Centre in Alberta, Canada. This blog discusses general legal questions for academic engagement. Those needing specific legal advice should consult members of the Zambian Bar.

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Suggested Citation: Munshya, E. Cabinet After Dissolution of Parliament: Towards a theory of Zambia’s constitutional law. Elias Munshya Blog (www.eliasmunshya.org) (May 12, 2016).

Download Justice Sichinga’s Grade 12 Ruling at eliasmunshya.org

Dear readers:

Here is Justice Sichinga’s ruling in Sibongile Zulu v. Attorney General and Electoral Commission of Zambia (2016) in PDF format. Just click below and download.

Sibongile Zulu v Attorney General and others (2016)

We will be reviewing this ruling in the next few hours and we shall share our analysis with followers of eliasmunshya.org and readers of the Zambia Daily Nation. Justice Sichinga’s ruling is very consistent with what we have been arguing over the past few months. You are all welcome to read several articles we did on the Grade 12 requirement in the Zambian constitution. Thank you for supporting http://www.eliasmunshya.org

 

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Thank you for supporting eliasmunshya.org  – E. Munshya (Barrister and Solicitor)

 

 

 

The G12 Crisis Everybody is Ignoring: How the Electoral Commission of Zambia is betraying rural Zambia

E. Munshya, LLB, LLM, M.Div.

Zambia is more than Lusaka. Zambia is more than Ndola. It is dangerous to judge the republic of Zambia by the standards of urban Zambia. It is ridiculous that a portion of 750,000 kilometres squared should be used as the standard for the whole. The problem with the G12 requirements is really not about what the constitution says, but rather what the Electoral Commission of Zambia thinks it says and how the Commission is going about in enforcing the G12 requirements. Adding to this confusion is the Examinations Council of Zambia’s cumbersome and expensive exercise of “verifying” G12 certificates. It is important to listen, and unfortunately neither the Commission nor the Council are listening to the people of rural Zambia. Again, there is no issue with the requirement as stated in the constitution. The problem created by both the Council and the Commission is that they have both interpreted the G12 requirements in ways that are causing serious confusion and mayhem particularly in rural Zambia. All political parties are waking up to the reality that they might not have candidates to stand as councillors or MPs in many rural areas and this problem is being caused by the Commission’s arrogance and the Council’s insolence for the people of Zambia.

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Elias Munshya, LLM, M.A., MBA, M.Div.

The Electoral Commission of Zambia is supposed to be serving the people of Zambia. It is not supposed to be coming up with ridiculous rules that defeat the purpose of having free and fair elections in Zambia. The Electoral Commission has the duty to interpret electoral laws and the constitution in ways that make it easier for people to participate in elections. The Commission is not there to hamper elections, but to make elections easier and accessible to all. The Commission does not have the luxury to treat an election as if it were an examination in the subject of physics or chemistry. Given the choice between two competing interpretations of the constitution, the Commission has the duty to take the interpretation that is more inclusive than exclusive. With regard to G12 requirements, the Commission has the choice in the matter. We know the matter has gone to the Constitutional Court, but even before steps are taken towards litigation, the Commission being a servant of the people should have issued guidelines that are more encouraging of democracy rather than discouraging democracy. The G12 issue has been hammered by many. The fact that we continue to talk about shows that it remains a very important issue. The Commission can and still has the chance to change the dynamics even if the matter is in court.

The Examinations Council of Zambia has also not made matters any easier. My uncle is aspiring to stand as Milenge member of parliament in the former Chembe Constituency. Honestly, there is no one better for the seat than him. He is a true public servant. While he is a regular of Milenge and has the privilege of living in both Milenge and Ndola, he had to make several trips to Lusaka, first to verify his G12 certificate at the Examinations Council of Zambia, then pay the fees to the Council and then was asked to return back to Lusaka three days later to pick up the letter of verification. He does seem to be a person of some modest means, but even for him, the verification exercise is expensive and cumbersome. How many of our fellow villagers would be able to afford to travel to Lusaka for this exercise? Candidates are being asked to wait for days as the Council does its verification and prints the letter of verification. At whose expense? This exercise is being done at a huge cost to democracy and common sense. Rural Zambia has been sidelined by this hugely expensive and unnecessary exercise. We can not move on like this. We cannot interpret the law only from the convenience of urban Zambia. We must think about the people of Kapalala in Milenge, the people of Sinda, and the people of Magoye. We must ask ourselves, how onerous are the regulations we are trying to implement for the people?

The claim that both ECZs are doing what they are doing to prevent fraud, is actually total nonsense. If it is fraud ECZ is trying to stop, why is it only asking for verified G12s and not verified NRCs? It is common knowledge that the NRC is Zambia’s most forged document, how come ECZ is accepting NRCs on their face value but cannot do so with the G12 certificates issued by the Examinations Council of Zambia? Conversely, if original G12 certificates are not good enough and will need a letter of verification what is there to prevent one from obtaining a fraudulent letter of verification? The process the Electoral Commission of Zambia has put in place with its Examination Council of Zambia counterpart is not aimed at preventing fraud. It is only aimed at making it difficult for people to participate in elections and this hurts rural communities more than anyone else.

Elections are just around the corner. The Electoral Commission of Zambia must have elections for all and not just for the elites of Matero and Kanyama. Rural Zambia needs to be respected so that the constitution works for them as well. It would be unacceptable to have elections where the people of Sioma and Liuwa have no credible candidates to represent their wards when President Lungu just commissioned the Lubosi Imwiko Highway close by. Rural Zambia needs more than good roads, it needs to be respected and those bodies who interpret the constitution should do so in ways that esteem rural areas.

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Suggested citation: Munshya, E. (2016) The G12 Crisis Everybody is Ignoring: How the Electoral Commission of Zambia is betraying rural Zambia. Elias Munshya Blog (www.eliasmunshya.org) (May 1, 2016).

 

Law Without Fear: Why LAZ should permit lawyers to comment publicly on legal subjects

By E. Munshya, LLB, LLM, MBA

For a nation that should be benefiting from the legal expertise of its lawyers, it is quite absurd that Zambian regulations forbid lawyers from publishing on legal matters without permission from the Law Association of Zambia. It is rather despondent that in a modern democracy we should have such a rule in place. There is no justifiable reason why members of the Zambian Bar should be forbidden from commenting on legal matters that are in public domain. Any talk of reform of legal practice must urgently address this matter so that, as YALI has proposed, lawyers are given back their constitutional right to hold and to spread their opinions.

According to Statutory Instrument 51 of 2002, Rule 17 (5) -(7), a practicing lawyer needs prior permission from the Legal Practitioners Committee or the Council of the Law Association of Zambia if they are to write or cause to be published “press articles on legal subjects”. This rule also forbids practitioners from appearing on “television or radio or any electronic media, to discuss legal subjects” unless prior permission is obtained from the Law Association of Zambia. The rules then provide the main reason why prior permission is needed: “to enhance or maintain the good name of the legal profession” (17 [7]).

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Linda Kasonde – LAZ President

Enhancing the “good name” of any profession is a very ambiguous concept, particularly in this situation. Lawyers do not exist to maintain a good name; they exist to serve the public. This is not to say that a good name is not important, obviously, it is. However, the nobility of maintaining a good name should not lead to a prohibition of legal opinions. It is the public that has given lawyers an exclusive monopoly and this monopoly should lead to public service and not some idealistic motive of maintaining the “good name”. How does the public benefit from the good name of lawyers, if lawyers cannot comment publicly about legal matters that are in public domain? Currently, these rules mean that community radio stations, newspapers cannot feature members of the Zambian Bar unless they have prior LAZ permission. This creates a huge information gap in public service by leaving the little legal commentary going on in the public domain to legal laymen who may not have adequate depth and appreciation for the legal subjects they so zealously expound.

I do not think that two lawyers arguing on the radio about the law would be worse than the two arguing in court about the law. Lawyers’ legal argument and commentary done on Radio Mano does not make it any more threatening or confusing than legal argument done in court briefs, sworn affidavits, and court submissions.

The rules are also ambiguous in that they do not quite specify what is meant by a “legal subject”. Does a lawyer need LAZ permission to appear on Radio Liseli to comment on the constitution? The constitution is a legal subject. Are lawyers forbidden from commenting on it? What about legal subjects such implications of Female Genital Mutilation, grade twelve requirements, and theft of public resources? Do lawyers need LAZ permission before they can comment and publish on such public interest matters?

The statutory role of the Law Association of Zambia must be understood and appreciated. But the Association must not be seen to be too restrictive of people’s civil liberties. Lawyers should be permitted to comment publicly on issues that interest them. The idea that by restricting lawyers’ rights we are somehow enhancing the practice of law is wrong at both law and common sense. Lawyers should not be reduced to zombies in public life who only resurrect when making passionate arguments in courts of law.

In any case, these regulations seem to be quite absurd in practical terms. There is a newspaper, for example, which is owned by a member of the Zambian Bar which daily blurts out editorials which address legal subjects. Unless the owner of that newspaper has gotten permission from LAZ and we all do not know about it, that newspaper’s incessant commentary on legal subjects demonstrates the weaknesses in the regulations and why they should not be tolerated in the first place. Does this mean that lawyers who own newspapers can go on to comment on legal subjects while those who do not run newspapers should not? The statutory instrument must be scrapped and replaced.

Some believe that if lawyers are permitted to write articles, then there would be too many opinions flying around in the public domain. To be clear, there are already too many opinions flying around in the public domain, but there is one segment that is truly missing: the segment of members of Bar. It would be in the interest of both democracy and common sense to have lawyers receive the liberty to have opinions and express them freely without having to fear for their licence.

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Elias Munshya, LLM, M.A., MBA, M.Div.

The public will be better served not only by hiring lawyers to represent them in court or in solicitor work but also when lawyers give their opinions on legal matters. I just hope that the Law Association of Zambia as they meet in their general meeting this weekend will find time to consider the changes needed to its regulations to address this important issue. Lawyers are a valuable segment of our society. And we do not need to hear from them only when they make objections before justices, but also when they make objections in a newspaper like the Daily Nation.

 

 

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Suggested Citation: Munshya, E. (2016). Law Without Fear: Why LAZ should permit lawyers to comment publicly on legal subjects. Elias Munshya Blog (www.eliasmunshya.org) (May 1, 2016)

 

 

Suspending Mazhandu Buses: The politics, the professionals, and administrative law in perspective

 By E. Munshya, LLB, LLM, MBA, M.Div.

In view of the recent bus road accidents, an administrative body entrusted with licensing bus and transport companies, the Road Transport and Safety Agency (RTSA), issued suspension notices to several bus companies for a month and requested that their respective bus drivers undergo refresher driving lessons. RTSA acted after road accidents involving buses as recent as last week when six people died on the spot after a bus overturned. The suspension was to take effect on April 21, 2016, on Mazhandu, Wada Chovu, and one more transporter.

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Elias Munshya, LLM, M.A., MBA, M.Div.

The minister of transport, however, has reversed RTSA’s decision to suspend Mazhandu and its colleagues. The action of the minister brings into focus the role politicians play in running the administrative state. The minister’s action is within his mandate. In our system of government, many administrative bodies, even though run by non-partisan public servants, are nevertheless supervised by politicians. In the case of the RTSA a minister can interfere with the decisions that RTSA takes. The area of law that covers the actions of RTSA and the minister is known as administrative law. Administrative law is the body of law that covers activities of administrative agencies, departments, and various bodies of the Zambian government. An important element in our administrative law is the principle of political input into decisions of administrative agencies. For example, even if some decisions can be taken by immigration officers, a minister responsible for immigration could on appeal reverse or vary a decision taken by an officer. The same applies to actions of the Road Transport and Safety Agency. Political interference has an important undercurrent to it: the will and mood of the people. The people through their political representatives and direct popular action reserve the power to direct activities of administrative agencies. Administrative agencies will only be effective to the extent that the people allow them to be. Our administrative system can be broadly divided into two: the professional level and the political level. The professional level implements the law and enforces the law, the political level takes into account broader issues of public interest to decide whether to uphold professional decisions or not. Professionally, RTSA suspended Mazhandu, but politically, a minister has cancelled the suspension. In these circumstances, it is the people who should now come in and make their opinions known about what is happening to their transport industry.

Interesting, after the minister cancelled RTSA’s decision to suspend Mazhandu, there has been little public outcry. It does appear like Zambians are quite indifferent and ambivalent to the carnage happening on their roads. We have given ourselves to fatalism and somehow feel like there is nothing that can be done about carnage on our roads. Or, may be the only action we seem to be taking is prayer against the devil who is responsible for the deaths on the road. If the devil is causing these accidents on the roads, then surely he is using speeding bus operators since over-speeding does seem to be the common theme among these accidents. In as much as we are praying and binding the spirits of witchcraft and demons of accidents, there is something we the people must do: we must say no to ridiculous over-speeding that is responsible for these accidents and deaths. We must support RTSA’s decision to suspend these bus operators so that the operators can take a little more care in their operations.

While it is true that accidents can and do happen, it is important for us to acknowledge that accidents are also caused by people’s direct actions and inactions. People do cause accidents. One or two accidents could excusable for human error. But when the whole transport industry resigns itself to a fatalism that excuses human action, we are on a slippery slope that would be difficult to reverse. Zambian bus operators must drive at safe speeds. Safe driving will help keep the demon of accidents at bay. It is inexcusable that we should be losing so many people.

RTSA’s suspension of Mazhandu was reasonable. A month would hurt Mazhandu financially, but it will be significant enough for the company to realise that it must keep its vehicles in good repair and its drivers must take good care when on the road. A bus is not an airplane. It should not be flying at ridiculous speeds.

The honourable minister did what he did because he knows there will be no political backlash from the people even if he interfered in RTSA’s decision. It is time for the people of Zambia to be outraged at what is happening on their roads. It is not normal for buses to be killing so many people.

We need to appeal to our drivers to drive at normal speeds all the time. There is no point in driving too fast only to die along the way. Better arrive alive an hour later than arrive dead on time. What good is speed if it will only lead to death? While death is indeed inevitable and all of us will have to die some day, it is not right to bring upon ourselves unnecessary deaths due to something we can control: speed. To those of us that are praying against the carnage on Zambian roads, let us also hold RTSA and the companies directly responsible for what is happening. We could also tell the minister that what he has done in interfering with RTSA’s decision is not supported by the people: the ultimate supervisors of all administrative action.

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Suggested citation: Munshya, E. (2016). Suspending Mazhandu Buses: The politics, the professionals, and administrative law in perspective. Elias Munshya Blog (www.eliasmunshya.org) (May 1, 2016)