Monthly Archives: January 2017

Why the Zambia Police Command should reverse its ban on foreign spouses

E. Munshya, LLM, MBA, MDIV.

It is rather shocking, and very surprising that the Zambia Police command has now banned its police personnel from marrying foreigners on the pretext that these foreign spouses could end up being foreign spies. Additionally, the command is asking police men and women who are married to foreigners to inform the Inspector General of Police as soon as possible.

When you come to think of it, which foreign spouses is the Zambia Police command banning? Is the police command concerned that our cousins, the Malawian men, will cross into Chadiza and seduce our police women and become spies? Or maybe the police command has a reason to fear. Malawians want to come and spy on our bumper harvest so that they can mysteriously send army worms to destroy our prosperity. I see. Or maybe after they spy on our harvest they will then send emissaries to their relatives at State House to beg for thousands of metric tonnes of maize which they will then steal causing the maize gate scandal in Lilongwe.

Or is it ba bululu shesu ba Kasai that the police command is concerned about? How can a police constable marrying ba Kasai be detrimental to Zambia’s wider security interests? Or perhaps, unknown to us, Senegal or may be Tanzania is sending killer women to seduce and marry Zambian police men and then spy on our emeralds. With due respect to the police command, banning foreign spouses for police constables will not make Zambians any much safer. And in fact, we stretch the law too broadly if we bring police constables under the list of those officers who prima facie hold state secrets. As a matter of course, holding state secrets is not in the police constable’s routine job description. And if they came across state secrets (which is rare), constables are required to keep the secrets as required by the same law binding on President Lungu as well as the least among us.

Not everyone who holds a government issued AK-47 holds government or state secrets. Confidential information does not necessarily amount to state secrets. The nature of public and community policing brings into focus confidential information and some operational secrets, but these are not necessarily state secrets.

Any functioning nation does have some state secrets. In our democracy, our executive branch of government supervises the security wings who hold guns and bombs that our neighbours or foreign actors should not know about. Additionally, in the security interest of this nation, our intelligence and other security wings carry out clandestine activities to keep Zambian borders safe. Our intel community also collaborates with friendly nations to ensure that we maintain the peace we need. There is no arguing against that. Our state must have and keep its secrets. On the other hand, I do not see a rational connection between banning police from marrying foreign spouses and keeping our nation safe. Police constables spread across our nation, do not hold state secrets that can be compromised by a foreign spouse. The power to arrest criminals is not a state secret. The Police Command is extending its reach too widely by bringing every sworn police officer under the cover of custodians of state secrets. While it is true that police constables can hold some confidential and operational information, it cannot be said that they hold state secrets to justify banning them from foreign marriages.

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E. Munshya

The police command spokesperson is reported to have justified this decision because married people “become one.” I do take it that we Zambians love the Bible and have read it many times. In fact, quite a good number of marriages are contracted in the church where the priests quote the Bible that says “…and the two shall become one” (Mark 10:8). This important biblical principle nevertheless is not a legally justiciable principle. Additionally, the oneness concept is a biblical principle, but it is not a practical principle. When a person gets married, they do not become the spouse. In the case of President Lungu, for example, even if Mama Esther is the spouse of President Lungu, she is not a president and she is not part of the presidency. President Lungu as head of state is privy to state secrets that he cannot share even with his spouse. The idea that policepersons should not marry foreigners because they will be sharing state secrets with foreigners makes absolutely no sense as a person sworn to keep secrets must keep secrets even from their own spouses. The duty to confidentiality is expected on many: lawyers, judges, counsellors, ministers, MPs, etc. The biblical principle of oneness does not enable professionals to share private information with spouses.  It is ridiculous to suggest that marriage, by itself provides a prima facie presumption that the spouse will know their spouses work secrets.

There are better ways to keep spies from bombarding our country. Forbidding police officers from marrying foreigners is not one of the ways to control foreign spying. If Zambia were at war, the nation can make emergency determinations about its security. Perhaps, it is at such a time that such decisions can be done about foreigners. But a blanket ban on foreign spouses in a time of peace, is overbroad and extremely confusing. There is absolutely no evidence whatsoever that foreign spouses are much more likely to be spies than local spouses. There is absolutely no evidence that restricting police to marrying Zambian spouses would make Zambia safer or that crime will reduce. The police command policy should be abandoned forthwith. It is absolutely unnecessary. Or may be it is necessary if we are just targeting our cousins the Malawians, such terrible spies!

 

When “Icishimba” Goes Rogue: Dr. Kambwili and the future of the ruling Patriotic Front (PF)

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

Even if President Lungu were to turn water into wine, there is just no way the Zambezi provinces (Northwestern, Barotse and Southern) would vote for him and his ruling Patriotic Front. Not now and not in 2021. Without the Zambezi provinces, President Lungu and the Patriotic Front remain hugely dependent on at least two big constituencies: Bemba provinces and the urban areas (Lusaka and Copperbelt). If there is any indication of the lost steam of the Patriotic Front, it should be seen with how it will perform and is performing in urban areas and in Bemba provinces. More than ever before, the Patriotic Front faces a serious threat within itself because of shifting support that is beginning to take place in urban areas and in Bemba speaking areas.

It is this background that brings the renegade Chishimba Kambwili into focus. Corruption charges aside, Dr. Kambwili matters for the PF not because he is a mover and a shaker on his own, but rather that his political treatment or maltreatment within the PF comes at a time when the PF needs to present a more unified stance to stave off any challenge to its Bemba and urban hegemony. Dr. Kambwili’s current status in the PF is the symptom rather than the disease that will seriously challenge the viability of the Patriotic Front. Here is why.

Urban areas are becoming increasingly discontented with the Patriotic Front. The people of Lusaka are close enough to see how many times the President is flying around the world globetrotting at tax-payer expense. The people of the Copperbelt have no jobs and employments are just nowhere to be found. With this urban dissatisfaction, President Lungu’s firewall is very likely to collapse in the next few years, if not months. The persecution or the so called disciplining of Chishimba Kambwili coincides with this urban discontentment unfortunately, and if it continues, Kambwili could rebrand himself as the champion of urbanites on the line of the Michael Sata populism. If that happened, President Lungu will face a very serious test of his leadership and his status.

That President Lungu survived without any serious difficulties in Bemba provinces came as a huge surprise in 2016. The strength of the PF, however, will be greatly challenged going forward. The Patriotic Front’s treatment of its Bemba-speaking politicians is concerning in several circles. Added to the list of sidelined influential Bemba-speaking politicians will be Dr. Kambwili. His sidelining will continue feeding this perception that President Lungu does not treat influential Bemba politicians fairly. Beginning from GBM, to Kambwili, to Emmanuel Mwamba, there is a lot to argue that President Lungu will not take kindly to influential Bemba politicians. Of course, he has tried to embrace less influential ones like Defence Minister Chama and perhaps Father Frank Bwalya. But beyond that, there is some perception out there, that the Patriotic Front’s lack of patriotism to its Bemba strongholds will not end very well and Chishimba Kambwili becomes just the next casualty.

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Dr. Chishimba Kambwili

From history, politicians like Dr. Kambwili who have had a fallout with a president do not last long in the ruling party. So, it is almost a foregone conclusion that Dr. Kambwili will likely be suspended or eventually expelled from the PF. However, if he taps into urban populism, he will be chipping away support not from the United Party for National Development (UPND), but rather from ruling Patriotic Front. Regardless, of what or where Dr. Kambwili decides to make his next political home, the loser will be the Patriotic Front and President Lungu. If he goes with the UPND, he could be the one that finally grants the UPND an urban seat in parliament. If on the other hand he decides to form a political party, that party will most likely be very competitive in the urban areas among the disgruntled forces of the ruling Patriotic Front. With little to no support in the Zambezi provinces and a shaking urban constituency, President Lungu will have depend heavily upon the Bemba-speaking provinces, another constituency that is not guaranteed to the Patriotic Front, come 2021.

Now that President Lungu is somewhat confident that the Constitution allows him to stand in 2021, there will be several in the ruling PF that will fight him on it. Unfortunately, President Lungu has very little to work with to maintain the little support from urban areas and his Bemba stronghold. With the current political doldrums facing Dr. Kambwili, this tempestuous honorary doctor could as well be the embodiment of urban and Bemba discontentment that finally topples the Patriotic Front’s hegemony. Or is it too early to tell?

 

Review of the Zambian Supreme Court’s Decision in Folayinka Esan v Attorney General (2016)

By E. Munshya, LLM, MBA, MDIV.

The Zambian state daily exercises power over the population in various ways. However, the Zambian state exercises this power through designated officers tasked with the duty to perform and exercise this power. The exercise of this power generally belongs to a branch of the law known as administrative law. The power that administrative bodies and individuals use can be derived from several sources such as the common law, statute or the constitution. When evaluating whether an administrative body or officer has the power to do an act, it is important to check with the enabling statute to see whether the statute does indeed grant the power to that administrative body or officer.

Zambian government ministers do exercise administrative powers. This power is mostly derived from statute and some of it comes from the common law. Most statutes giving the ministers administrative law powers are framed quite generally. For example, the minister of home affairs has the power to make an assessment that a particular foreigner in Zambia has become a danger to Zambia and must be removed. This power, known as a “discretion”, is very wide such that the statute leaves it to the minister’s good judgment and prudence to determine who can be deemed as a danger. In the past, courts of law have given great deference to ministers to exercise this power. However, this assumption is now under attack, and administrative bodies including ministers are now expected to be reasonable when exercising administrative law duties such as performed by the minister of home ministers.

This is what arose in the recently concluded Supreme Court case of Esan v Attorney General (2016). Mr. Esan, a British national, had his work permit revoked and subsequently ordered deported after the minister made an assessment that he had become a danger to peace and good order in Zambia. It was in December 2012 when Mr. Esan upon his return from an overseas trip got detained at the airport in Lusaka and got transported to Ndola where he was ordered deported as he had allegedly become a danger to Zambia.

Mr. Esan sought judicial review of the minister’s action and at first instance, the high court ruled against him declaring that Section 34 of the Immigration and Deportation Act granted the minister of home affairs unfettered discretion to declare an alien dangerous to peace and good order in Zambia and deport such aliens.

Mr. Esan appealed against the high court ruling and on December 9, 2016, the Supreme Court issued its ruling. This ruling, coming from Chief Justice I.C. Mambilima, Judge R.M.C. Kaoma and Judge M. Musonda, is monumental for several reasons.

  1. It recognises within the ambit of Zambian democracy that, “courts ought to be conscious of emerging trends towards more open and transparent government that promote the rule of law, human rights and curbs arbitrariness” (p.25). It is my hope that this statement is being read by all judges in Zambia and being given the serious consideration it deserves.
  2. Esan shows that judges of the Zambian courts are willing to stand up to the potential tyranny of executive power. This looks like a great reversal from former Acting Chief Justice Lombe Chibesakunda’s court which clothed the presidency with almost infallible powers in the case of Munalula and Kajimanga v. Attorney General case. In Esan, the judges are saying that the law that seems to clothe decision makers with seemingly absolute discretion must be interpreted strictly and in ways that give effect to the democratic character of the Republic.
  3. The judges in Esan clarify the law regarding the duty that a decision maker has to give reasons for their decision. The statute does not obligate the minister to give reasons why she decides that person A should be declared persona non-grata. Nevertheless, in the “dispensation of open government”, declared Chief Justice Mambilima, “there is a growing school of thought advocating that reasons must be given for administrative decisions to show the considerations that the decision maker relied on to arrive at the decision and most importantly, to assist the affected persons and those reviewing the decision when it is challenged” (p. 31). Most importantly and crucially, “failure to give reasons for a decision amounts to a denial of justice and is, in itself, an error of law” (p.31).

Esan is in my opinion the most significant administrative law decision to have come out of the Zambian judiciary this year 2016. We look forward to the development of the law in this area. With rulings like this one, the Zambian judiciary is in good hands.

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Citation: Munshya, E. (2017). “Review of the Zambian Supreme Court’s Decision in Folayinka Esan v Attorney General (2016)”. Elias Munshya Blog. (www.eliasmunshya.org)

Elias Munshya New

Elias Munshya, Of the Alberta Bar

 

 

President Edgar Lungu is Not Eligible to Stand in 2021: Here is why

By Elias Munshya & Michael Chishala

“A person who has twice held office as President,” states Article 106(3) of Zambia’s Constitution 2016, “is not eligible for election as President.” However, Article 106 (6) further explains that a Vice-President, or another person who assumes the presidency due to a by-election, will not be deemed to have held office if they have served as President for less than 3 years before the date of the next general election.

The question Zambians are facing right now is whether President Edgar Chagwa Lungu qualifies to stand in 2021. President Edgar Lungu was first sworn into office in January 2015 after winning a presidential by-election to replace a dead incumbent Mr. Michael Chilufya Sata. Lungu was re-elected in August 2016 after general elections. In 2015 when he first ran for office, Zambia was under Constitution 1996. However, in January 2016, Zambia adopted an amended constitution with the provisions explained above. The question is how would this apply to President Lungu.

President Lungu and his supporters claim that Constitution 2016 allows him to stand again in 2021. However, as stated above, Article 106(3) cannot be any clearer: “A person who has twice held office as President is not eligible for election as President.”

We submit that President Lungu has “twice held office”. The first was in January 2015, and the second was in September 2016, after the August 2016 elections. Article 106(2) states as follows: “A President shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office.”

On 25th January 2015, Mr Lungu was sworn-in as President. He “held office” until the next swearing-in ceremony on 13th September 2016 when as “next President-elect”, he was sworn in for a second time. Thus, He is currently “holding office” for the second time until the next swearing in ceremony in 2021.

Some Lungu supporters claim that his first term does not count because of Article 106(6) which states that for the purposes of Article 106(3), a term of office is only counted if it is at least three years long. Since Mr Lungu’s first term was less than three years, they say we must discount it. This argument fails on two counts.

  1. The “three-year rule” only came in effect in 2016 and you cannot apply the law to previous events unless it is explicitly stated in the law itself. For example, before 2016, there was no provision for 50%+1 to determine the election winner. If we applied the law retroactively, it would mean Mr Lungu never won the 2015 elections since he never went over half the votes cast. Another example is the Grade 12 certificate requirement. The fact that it is now required for a candidate to stand as president does not mean the previous elections that were held without G12 certificates are invalid.
  2. The three-year rule fails because if we apply it to President Lungu, he does not even qualify because it can only be applied to a Vice-President who was elected as a Running Mate and then took over after a vacancy in the President’s office. Mr Lungu was never a Vice-President. Article 106(6) refers to Article 106(5)(a) and (b) when mentioning the three-year rule and President Lungu never took office under either of the two situations mentioned in Article 106(5).

If we followed, Article 106(5), only Dr. Guy Scott, who is now eligible to stand as Zambian President, would possibly qualify. As a side issue though, it is interesting to note that Dr. Scott actually never “held office” since he was never sworn-in as President, even though he performed the Executive functions of the President’s office. Similarly, during the three months after the death of President Levy Mwanawasa, Dr. Rupiah Banda never “held office”.

Another argument by Lungu supporters is that the Constitution 2016 reset the clock and everything is started afresh, including counting of terms of office previously held. This fails because there is no provision in the Constitution 2016 that says that previous terms of office under the earlier Constitution are not counted. The critical phrase in the Constitution is “twice held office”.

The definition of “holding office” has not changed since the 1991 Constitution to date. Constitution 1996 in Article 34(9) and (10) stated as follows:

A person elected as President under this Article shall be sworn in and assume office immediately but not later than twenty-four hours from the time of declaring the election. The person who has held office of President shall immediately hand over the office of President to the person elected as President and shall complete the procedural and administrative handing over process within fourteen days from the date the person elected as President is sworn in.

Thus, it is very clear that being sworn-in is what constitutes the beginning of “holding office” with respect to Article 106(3) in the 2016 Constitution and this also applied previously. Mr Lungu has been sworn-in twice and as per Article 106(3), he will have “twice held office” by 2021.

The logical end of the arguments advanced by President Lungu’s third term supporters would mean that if the late President Fredrick Chiluba were alive today, then even he could contest again. The argument could extend further to Dr. Kenneth Kaunda as well. If everything has started on a clean slate there is no stopping Kaunda or Chiluba. Further, if this third term argument held, then Dr. Rupiah Banda might claim two more terms, since he too served for less than the proverbial 3 years. We doubt if the Lungu argument makes any sense at all.

We also note that in January 2016, there were two acts of Parliament that ushered in Constitution 2016. Constitution Act No. 1 provided for the transition between the two Constitutional eras (Constitution 1991 and Constitution 2016) while Constitution Act No. 2 contains the actual text of the 2016 amendments to the Constitution. To provide for the transition, Act No. 1 stated that, “the President shall continue to serve as President for the unexpired term of that office as specified by the Constitution in accordance with the Constitution.” This provision confirms our view that the 2016 Constitution (assented to on 5th January 2016) recognizes the first term of office held by Mr Lungu that was already running from January 2015.

We understand that President Lungu and his supporters are talking of taking this matter to the Constitutional Court. We believe that step is unnecessary in view of the circumstances. We do hope to continue participating in this dialogue.

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Suggested Citation: Munshya E. and M. Chishala (2017). “President Edgar Lungu is Not Eligible to Stand in 2021: Here is why”. Elias Munshya Blog. (www.eliasmunshya.org).

About the Co-Authors:

  • Michael Chishala (michaelchishala.com) is an entrepreneur and web developer based in Lusaka, Zambia. Trained as an engineer at the University of Manchester in England, his multifaceted interests include: philosophy, economics, politics, theoretical physics, architecture, music, and the arts.
  • Elias Munshya (eliasmunshya.org) is a Zambian based in Calgary, Alberta where he practices civil litigation, administrative and human rights law. He holds graduate degrees in theology, counselling, law and business administration.
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Elias Munshya

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Michael Chishala