Monthly Archives: November 2016

Luo Falls in Munali: My analysis of Justice Musona’s ruling in Mwamba v Nkandu Luo (2016)

By E. Munshya, LLM, MBA, MDIV.

Elias Munshya New

Elias Munshya (of the Alberta Bar)

Justice E. L. Musona on Tuesday, November 22, 2016 delivered his ruling in the Munali Constituency parliamentary petition. It is a 56-page judgment imbued with story. Good story is what makes a good case. In fact, stories win cases. A trial is a story. Gathering of evidence involves story telling. Unless you learn to tell a story, you cannot win in court. Going through the judgment, you can see how the petitioner Doreen Sefuke Mwamba told her story and arranged her evidence. It was quite an emotional story too and quite compelling. It also involved some hilarious features like when one of the petition witnesses testified that they saw PF cadres give soft drinks to police men, allegedly laced with some substance that caused the police officers to fall into a deep sleep immediately after taking the drinks. It is while the police slept, testified the witness, that PF cadres helped themselves to stuffing the ballot boxes-packing and unpacking them. Every story needs such twists and turns. And in the Mwamba v. Luo and others, you have the story, you have everything. Perhaps the saddest part of the evidence was when candidate Mwamba testified that she feared for her life as she and other members of the UPND were being beaten on top of the campaign double decker bus in Mtendere. PF cadres were shouting among themselves and encouraging each other to do what Ms. Mwamba understood was going to be rape. No candidate in Zambia needs to live in this kind of fear. Our country can do better and must do better. Rape or the threat of rape has no place in our country’s political discourse.

Justice Musona has captured the spirit of democracy in his ruling. I find it quite thrilling. He has categorically put it very eloquently that the Electoral Commission of Zambia has the duty to ensure that it complies with the law. Particularly, Mr. Justice Musona took issues with the Form Gen. 12 which in many polling stations had not been signed by polling agents. He then added this important statement on page J43:

“In a democratic society like Zambia, no area can be a NO-GO-ZONE to other political parties. Each political party is free to campaign in any area without hindrance from any rival political parties”.

This statement is a direct indictment on all of us and I hope that the Electoral Commission of Zambia will heed Mr. Justice Musona’s thoughts here and allow for elections that are truly free and fair for all political players. Justice Musona did not spare the state either. He indicted the police as having been complacent in the Munali unfair election stating “the state also did not show what action the State police took regarding that merciless attack by PF supporters on UPND supporters. State police, therefore, like the Electoral Commission of Zambia, have let down the people of Munali constituency”. It cannot get any uglier than this. We had better pay heed to Justice Musona’s rebuke.

I understand that Professor Luo is appealing Justice Musona’s ruling. For all the good things this decision is to Zambian electoral jurisprudence, I believe an appeal would be in order. Justice Musona is quite right about the violence characteristic of the Munali constituency. He is right in his concern with the general lapse of the Electoral Commission of Zambia, but I find it difficult to accept the idea that the petitioner discharged its burden sufficiently on the charges. The greatest weakness in Mr. Justice Musona’s legal reasoning has to do with the nexus between the illegal acts and the impact on the majority of the electorate in Munali. I am finding it difficult to find the connection. For now, the matter may be appealed, or maybe it has been appealed already and we wait to hear what the constitution court will say about it.

Whereas Mr. Justice Musona is right about the standard of proof required in electoral petitions, I do not see how he uses this standard considering the evidence before him. For example, how does he connect the acts of the violent cadres on the double decker bus with the candidate or her agent? The law does not punish the candidate for the acts of violence perpetrated by cadres, candidates are held accountable for the acts the candidates do or acts that are done with their knowledge or approval or approval of their electoral agents. I think that may be the question the appellant court must answer.

For now, we notice the good with Justice Musona’s judgment, but we also face the challenge of how he came to the decision. No matter how the Constitutional Court looks at, we will all have to agree with Justice Musona that, “Each political party is free to campaign in any area without hindrance from any rival political parties.”

The ruling can be downloaded here:mwamba-v-luo-and-others-2016

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Elias Munshya is a civil litigator and administrative law practitioner in Alberta, Canada.

Amending the Zambian constitution should not be done in the dark

By E. Munshya, LLM, MBA, MDIV (of the Alberta Bar)

13524379_10154251631640528_1091952662934062325_nThe 2016 amendments of the 1991 constitution of Zambia need revision. I would be the last person to dispute that fact. From language that is ambiguous to plainly ridiculous provisions, Constitution 2016 need to be reformed. Wanting to change the constitution is one thing, however, and the process used is quite another. President Lungu and his Patriotic Front must come clean and let the people of Zambia know which provisions of the constitution are up for revision. This cannot be done in the dark. The Zambian parliament must not move to amend the constitution in a deceitful or cantankerous manner. Should parliamentarians try to do this and amend the constitution in the dark, they will hear from the million angry voices of our people. It is the people that are the true guardians of democracy and all institutions of this great nation are reposed and deposited in the people themselves. It would be ridiculous for parliament to attempt to amend the constitution without some form of public disclosure and discourse. No matter how inconvenient, discourse must be had on the way forward.

The other thing that the PF must do is to speak to the UPND and other opposition parties so that they can come up with some form of consensus about amending some provisions. President Lungu should not lead the country as if it comprises only his dununa reverse supporters. Zambia is a republic with diverse opinions and formations. The chief executive of this nation must try to find a way to bring all sorts of people to the table. If Ba Hichilema and Bo GBM will not meet with the president, at least Mr. Lungu should make effort to speak to opposition parliamentarians to forge a compromise on this issue of reforming our constitution. Going it alone is ridiculously arrogant and the ruling party must guard itself in that way.

We must commend some opposition parliamentarians who are already holding the PF ruling party to account in parliament concerning these amendments. They must keep up the good work.

The Zambian constitution should not be easily amended. A constitution that can be changed and amended overnight is not worth the paper it is written on. By trying to rush through constitutional amendments, the PF are undermining a very important principle of constitutional vitality: the fact that the constitution cannot and should not be routinely amended. It does not matter that the PF have a majority in parliament. A majority in parliament is no reason enough to bulldoze their way with constitutional amendments. My suggestions above will ensure that the PF takes the time to reflect with the people of Zambia directly and to involve all parliamentarians in amending the constitution that truly needs some amendments.

Which provisions then need reform?

  1. The PF want to bring back deputy ministers. This is unacceptable. We already have 30 ministers and 10 additional provincial ministers, there is no need for any more ministers. Zambia is supposed to be exercising some level of shrewdness and not go on a huge spending spree on more deputy ministers. If His Excellency Lungu comes across this article, I ask him not to give in to the temptation of over bloating cabinet and ministers. We have enough ministers.
  2. PF is also trying to amend the 50+1 provision. There is some sense in doing that. But this provision must not be amended without some discourse with all stakeholders.
  3. Parliament also needs to look at the Constitutional Court and give it statutory jurisdiction over the Bill of Rights. If it has to wait for the referendum, parliament can simply give high court jurisdiction to constitutional court judges as well so that they can have the jurisdiction over the Bill of Rights.
  4. Parliament needs to look at the ambiguous provisions of what happens during presidential petitions.
  5. Another area that might need reform is local government. So far we are getting conflicting interpretation about the executive status of mayors. Parliament needs to look at this very closely.

The most important of the suggestions I have provided above is that the PF and President Lungu must begin some form of dialogue. In discourse we trust and must trust as a true democracy.

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