Category Archives: Zambian Law

Loving the “Other” In Zambia: Towards a praxis of peace in political violence

By E. Munshya, LLM, MBA, MDIV

Our nation is in crisis. We have suddenly realised that we too are a violent nation. The so called oasis of peace, we think we are, has been challenged a great deal by recent events. Zambians known for hospitality made headlines in April, 2016 when they looted shops owned by foreigners. Suddenly, right before our eyes, the myth of peace has given way to a narrative of confusion. A few weeks before the elections, violence has been passing like a song in the night. Not even the Head of State seems to know what to do about it. A citizen was shot by police. Accounts differ about what happened exactly. Some say it was the cadres who got violent, others accuse police of the violence. If Zambia is to return to the peaceful oasis it has been, it must re-examine its own myth making as a nation.

To counter a culture of violence, we must learn to live with the “other”. We call ourselves One Zambia One Nation. This is partly true, but in order to counter the violence, we must interrogate the assumptions that come with this national motto. For Zambians to stay safe and peaceful, their lives must not be predicated on an assumption that they are a homogenous unit. Homogeneity has never been the standard for peace, at least not from the Biblical perspective. Jesus does not want us to think alike, in order for us to live at peace with each other or with the other. As a matter of fact, Jesus brings a revolutionary concept to peace. It is rarely a homogeneity of race, tribe or even nationality. What brings peace from the Christian perspective is the tolerance of diversity, a respect for the foreigner, and a hospitality towards the other.

Zambians are as strong and as weak as any other peoples. Nations at war are not necessarily more evil than we are. Things can easily escalate and we could lose the peace we have always enjoyed. We must begin interrogating our own pride and arrogance that makes us believe that we are somewhat more special than others in the region. Human beings are very evil and sinful. It is important that the Zambian human realises just how base and sinful they can be. We are as wicked as the Rwandans or the South Africans. We are all human after all. If we condemned South African xenophobia, our pointing fingers were greatly embarrassed when in April we did our own xenophobic acts on the Congolese and the Rwandans running shops in Chawama and Mtendere.

Elias Munshya New

Theologian & lawyer

When Jesus tells the story of the Good Samaritan in Luke chapter 10, it is a revolutionary story that challenges race, nationalism and religion. The story of the Good Samaritan in fact goes further by redefining the way Christians should live with the neighbour or with the “other”. The Samaritans were ostracized by the Jews. And yet, it is the ostracised person in the story who goes to help a Jewish victim of violence. By making the Samaritan become the hero of the story of hospitality towards the Jew, Jesus leaves for us the example we must follow. Tolerance and love become powerful once we exercise it beyond our comforts. Love cannot be love until it is given away. This is the powerful lesson we need to learn in this great country before we give way to violence and become as failed a state as the many African nations that have gone to war.

We do not have to like the other to love the other. We need to love even those we do not like. There is nothing drastic about a PF cadre loving a PF cadre, but it is a great revolutionary act when cadres love each other across party lines and in spite of their political differences. Jesus himself assembled a team of disciples whose political persuasions were antithetical to each other. Among the disciples of Jesus was Matthew the tax collector and presumed collaborator of Roman colonialism. Simon, the Zealot was also one of the disciples of Jesus. Zealots and tax collectors were the worst of enemies. Their politics was at odds but it is remarkable that Jesus brought these two enemies together to become the core group of his incarnational work. In Zambia, we must so transform our politics as to know that after we have done all the politics there is, we must still learn to live with each and tolerate each other just like Matthew and Simon, the zealot learnt from Jesus the grace of tolerance.

We must love the other because we are the other. Homogeneity is important, but it is on its own a very dull construct. In 1991, Zambia did away with a homogenous political party and ideology because we wanted some variety in the daily intercourse of our political conversation. After we have tasted the sweetness of democracy, we must not let political heterogeneity lead to violence and despair. We certainly are going to see things differently. But differences in how see things must not create a chasm that divides the cemented unity of our nation.

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Edgar Lungu

President Lungu has called for prayers. We must pray for our country. But more than that, we need to act very decisively. Prayer without action does not achieve much. Even the book of James encourages us to be doers of the Word. President Lungu must not only model prayer, he must model love and tolerance towards the other. He is president of all and it must hurt him when an innocent citizen gets killed by bullets blurring from government issued rifles. President Lungu can set the tone: the tone of prayer and the tone of tolerance, grace and forgiveness. He must not push responsibility to UPND cadres alone as PF cadres are equally violent. It is time to pray, but it is also time to love the other and to tolerate others even if their politics is repugnant to our nostrils. There should be space for all colours under the Zambian skies.

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Suggested Citation: Munshya, E. (2016). Loving the “Other” In Zambia: Towards a praxis of peace in political violence. Elias Munshya Blog (www.eliasmunshya.org) (July 17, 2016)

Elias Munshya is a theologian and lawyer practising civil litigation, administrative law, and estate law at West End Legal Centre (www.westendlegalcentre.com) in Alberta, Canada. 

Note: A version of this article appeared in the Friday edition of the Zambia Daily Nation Newspaper on July 15, 2016 in the Munshya wa Munshya Column

Towards A Theology of Hospitality: The Referendum and Zambia’s Christian nation declaration

By E. Munshya, LLM, MBA, MDIV

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E. Munshya – theologian and lawyer

Ours should be a theology of hospitality, not arrogance. An evangelical political theology in Zambia must begin reassessing the theory and practice of its Christian faith, particularly as it relates to the relationship between the Church and the state. Zambia is not a church; it is a liberal republic. We cannot run Zambia is if it were a church. Zambia is not a congregation and Lungu is not its priest or prophet. Jesus is no more king over Zambia, than he is king over Iraq and Saudi Arabia. Jesus is the King of all Kings and Lord of all Lords. We do not need to enthrone him, for him to be king. The fact that we have declared ourselves a Christian nation, has led to a theology of arrogance that lacks the hospitality spirit of our Lord. We are an overindulged lot and it is only after we have reassessed our spoiled theology that we can return to a more balanced approach of the faith as it relates to our republic. There is nothing wrong with our profession of the Christian faith, there is everything wrong if we create an intercourse of the church and state to a level where we fail to distinguish one from the other. Nothing has led to our lack of theological hospitality more than the declaration of Zambia as a Christian nation, particularly after it was enshrined in the constitution of Zambia in 1996.

The Church of Jesus in Zambia, does not need the aid of the state to flourish. Jesus is building his church even in the most repressive regimes such as China. The church is growing the fastest in communist China than it is in Zambia further pouring scorn on our evangelical nationalism fueled by American political theology more than the simple hospitality of Jesus of Nazareth.

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President Edgar Lungu

Zambia will be going to a referendum on August 11, 2016 to entrench the Bill of Rights into our constitution. There is a section of our evangelical brothers and sisters who feel that the Bill of Rights is somehow anti-Jesus and would lead to Christian depravation. The Bill of Rights in its draft form guarantees every citizen of Zambia the right to belong to any religion of their choice. The Bill of Rights will guarantee that the state respect citizens’ freedom of conscience. If we are to do away with a theology of arrogance, we must first define what the Bill of Rights is all about. The Bill of Rights is not a statement of faith. It is not a religious text. It is a document that explains the limits of state action as far as the rights of citizens are concerned. The Bill of Rights proscribes the state from imposing upon citizens a particular doctrine or faith. It protects citizens from the power of the state’s bullets and guns. Zambian Christians will be better protected if the state is proscribed from imposing its faith upon citizens. The logic is simple: A Christian government today, may cease to be a Christian government tomorrow. If the church has been enjoying good treats because of a government’s faith, then the church will disintegrate if that government loses power.

Evangelicals need a prophetic distance from state favour by refusing to eat from Caesar’s table as a way of insulating itself from trouble. Government must provide an enabling environment of freedom and let Christianity compete in an atmosphere of liberty without coercion.

The declaration of Zambia as a Christian nation is a powerful statement of intent and faith. It is what we as a nation have declared ourselves to be. That being the case, we make a huge mistake if we think that the declaration has somewhat given Christians reliable rights over non-Christian citizens. As a Zambian Christian, I do not have more human rights than a non-Christian. As a Christian, I am not a first class citizen over a non-Christian. As we debate the Bill of Rights, let us be very clear that we are debating a bill for all citizens and not just Christian citizens. A theology of hospitality will help evangelicals to treat non-Christian citizens of Zambia as equals with full rights of citizenship.

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Frederick Jacob Titus CHILUBA

Without a theology of hospitality, Zambian evangelicals would lack a transnational prophetism. Ours would be a nationalist prophetism. A nationalist prophetism looks no further than a respective nation. It is self-centred and views Christianity as a means of temporal and political power. Nationalist prophetism is seen from evangelicals in countries such as the United States. Transnational prophetism on the other hand is outward looking. It looks at the Christian faith as a faith that goes beyond national government to encompass believers across the world. Transnational prophetism is not convinced simply by intra-national Christian domination, but a trans-national hospitality towards the “other”. Let us take Nigeria as an example. Nigerian preachers and Nigerian Christians will do anything in their power to keep Nigeria a secular state and would do everything to have a Bill of Rights similar to the one we will be voting on during the referendum. They want to keep the Nigerian state from interfering in religious liberty of Nigerians. They want the Nigerian state to guarantee every citizen the liberty to follow their faith and for faiths to freely propagate.

In Zambia, on the other hand, it seems Zambian evangelicals take it for granted that the state must somehow aid them in their crusades and evangelism. Even when the state favours us, Zambian evangelicals must live their faith as if they have no favour from the state and must act as if the state is not their friend. Zambian evangelicals must be faithful citizens of their country, but they must not give into the illusion that they need state favour to exist.

The work of evangelism must continue, and the best way to continue with the work of evangelism is if Christians had the freedom to spread their faith in a country which guarantees religious liberty to all. I hope all citizens in Zambia will vote yes for the Bill of Rights.

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Suggested Citation: Munshya, E. (2016). Towards A Theology of Hospitality: The Referendum and Zambia’s Christian nation declaration. Elias Munshya Blog. (www.eliasmunshya.org) July 7, 2016

 

A New Legal Tradition: Commentary on the rules of Zambia’s Constitutional Court

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

On May 27, 2016, Justice Marvin Mwanamwambwa, the Deputy Chief Justice of Zambia and acting Chief Justice signed Statutory Instrument No. 37 of 2016 promulgating the rules of the Constitutional Court (C Court). It takes more than a Colosseum of judges to create a court system. Operationalisation of the Court simply means one thing: The Court can now begin its sittings as it now has the rules and the infrastructure to do so. I provide a commentary on the rules using a question and answer format.

What are Rules of the Constitutional Court?

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Supreme Court of Zambia

In general terms, there are two elements to any court system: substantive law and procedural law. Substantive law concerns the law as it is and includes subjects such as criminal law, securities law, corporate law and estate law. Substantive law is the “what” of the law. Procedural law on the other hand is about procedures and rules of how parties and the court can best deal with legal disputes. Good legal practice does not subsist in the knowledge of substantive law alone, but in the knowledge of the nuances of rules of procedure. A court needs some form of order of how people can approach it and what forms, if any they can use. It would be unimaginable, for example, for people to just show up before a judge and tell her whatever grievances they have. It is the rules of court that explain how a petitioner can bring matters before a judge: first fill out a form, write down what you want, take it to the registry, swear that what you have written is true, and have the court officials schedule a date for you to appear before a judge. It is the rules that would appropriately explain the how and where of any legal process. In law, the what of the law is as important as the how and the when!

If the Constitutional Court ranks equivalently to the Supreme Court, why is Justice Mwanamwambwa signing the Statutory Instrument operationalising the Constitutional Court?

According to Zambia’s constitution, the C Court ranks equivalently to the S Court, and the respective heads of the C Court and S Court rank equivalently as well. However, the Chief Justice of Zambia remains the head of the judicial branch of government. In that capacity, as the head of the judiciary, the Chief Justice is administratively superior to the president of the Constitutional Court. It is in this capacity as acting head of the judiciary that Justice Mwanamwambwa promulgated rules of the Constitutional Court. The Constitutional Court is a new court and there will be birth pangs and perhaps a little clash between two of our highest courts. However, knowing the maturity and candor of the judges of both of our highest courts, I am very positive that any clashes will be handled with the greatest civility that has come to define the greatness of our nation and the stellar reputation of our judges.

Are Constitutional Court Rules similar to other Rules of Zambian courts?

Zambia, as a common law country, relies heavily upon court rules and legal procedures from England and Wales. So much for our pride of political independence. The rules of the C Court acknowledge the role of English legal procedure and provides that the Rules of the Court of Appeal of England and Wales would apply on any question that is not addressed in the rules promulgated under the hand of Deputy Chief Justice Mwanamwambwa. Both the High Court and the Supreme Court rules currently in force are surrogates of English rules.

What is so remarkable about these new rules?

Elias Munshya New

E. Munshya of the Alberta Bar

The rules of the Constitutional Court are quite modern and take into account how business should be done in the age of the internet. The rules take into account information technology and modern devices. However, they go into too much detail about the technology that could be obsolete within a year or two. The rules could have done well to recognise the role of modern information technology without the need to actually specify the technology. Technology seems to change as quickly as we are blinking and the law will always have to play catch up. The recognition of e-filing, and scanning, and serving documents electronically is a very positive move and the Zambian judiciary must be commended for this modernization. Technology is expensive and it is my hope that the judiciary will have enough financial resources to implement its drive towards technology. In terms of modern technology, the rules ignore important aspects of modern technology: websites and blogs. While it goes on about books being relevant and admissible in court, the rules are silent about the relevance of blogs and internet sites. If books are valuable, a court that wants to recognise information technology should equally recognise the value of blogs such as eliasmunshya.com which is dedicated to academic discussion of both law and culture. Just for its recognition of information technology, the Rules should be commended. It is a great start.

 

Are the Rules easy to understand?

I think they are quite easy to comprehend. I like the simple language used in the Rules. A few ambiguous paragraphs exist here and there, but in general terms, I like the language of the rules. It will take some time though for both lawyers and laypeople alike to get used to the Rules. But they provide a very robust new beginning for our Constitutional Court. I would not recommend that citizens attempt to navigate through the legal and constitutional system on their own. It is always a good idea to enlist the help of a member of the Zambian Bar. Few as they seem to be, Zambian legal practitioners are committed to representing constitutional litigants and I have no doubt that they will help in the herald of this new legal dispensation.

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Citation: Munshya, E. (2016). A New Legal Tradition: Commentary on the rules of Zambia’s Constitutional Court. Elias Munshya Blog. (www.eliasmunshya.org). July 3, 2016

Splitting Regulation from Fraternity: Reforming the Law Association of Zambia

By E. Munshya LLM, MBA, MDIV 

The functions and objects of the Law Association of Zambia (LAZ) are very important in our system of law, government and politics. LAZ’s mandate is primarily derived from two statutes: The Law Association of Zambia Act and the Legal Practitioners Act. Under the LAZ Act, LAZ’s objectives can be broadly divided into the following:

  1. lawyer regulation, training and development;
  2. socio-lego-political engagement; and
  3. fraternal fellowship for lawyers.

LAZ’s regulatory objects are principally carried out through both the Legal Practitioners Committee and the Disciplinary Committee. The socio-political engagement is fulfilled by LAZ’s active socio-political engagement and lobbying on matters of legal importance. LAZ has been active in the advocacy for a new constitution and through this statutory mandate it was a very worthy and influential member of both the OASIS Forum and the Grand Coalition, two important lobby groups that advocated for a new constitution in Zambia. As a fraternal organisation for lawyers, LAZ advocates for camaraderie, self-care and represents lawyer interests before the government and the society. From 1973 to the present, LAZ has played a huge role not only in the legal development, but also in the socio-political engagement and thought. Particularly, from the advent of plural politics in 1990, LAZ has been at the forefront advocating for democratic change and reform. These are positively praiseworthy achievements.

In spite of all these obvious strengths, however, LAZ as it currently stands represents an untenable model that needs urgent reform. The model under which LAZ currently operates is no longer suitable for a bourgeoning democracy like ours. In all fairness, there is a need to reform it to make it more responsive to the needs of the public while at the same time maintaining both public and governmental confidence in an association that regulates legal practitioners. Particular areas of concern with the current LAZ legislative regime concerns its seemingly conflicting roles as a legal/lawyer regulator while at the same time serving as a fraternal organisation for the same lawyers. LAZ needs to be reformed by splitting the regulatory function (Legal Practitioners, Disciplinary, Education committees) from the fraternal and socio-political function (LAZ-at-large).

Elias Munshya New

Elias Munshya (of the Alberta Bar)

Recent concerns over LAZ’s opinions and advisories are quite justifiable particularly when LAZ advisories do not represent views held by a good number of its members. Some positions taken by LAZ have even been held to be wrong by the Supreme Court of Zambia. This is not a good position to be in for a regulator of lawyers. The regulator of lawyers in Zambia should appear to be above board and should only go to court when the regulatory side of legal practitioners is at stake. The regulator should not go to court to argue about how much tax a person owes or does not owe. Recently, LAZ president Linda Kasonde issued some statements concerning Mr. Fred M’membe’s The Post tax problems with the Zambia Revenue Authority. LAZ members are reluctant to come out in the open to provide alternative understanding of issues to their organisation because LAZ is both their fraternal organisation and their regulator at the same time. The result is that LAZ members might feel muzzled and the LAZ senior leaders might get a pass by issuing statements under the cover of statutory protection even when their members believe otherwise. However, once regulatory functions are split from the fraternal functions, the regulatory side of LAZ can be run by an independent body that will concentrate on training, disciplining and regulating lawyers without having the pressure of the burdens and expectations that come from socio-political engagement (such as tax issues). The fraternal side of LAZ can continue and can encourage its members to participate, to criticize and to reach some consensus as the association participates in the socio-political destiny of the country.

This proposal is not by any means unusual. Currently, the Legal Practitioners Committee (LPC) is an influential committee within LAZ, tasked with lawyer regulation. All that is needed in my proposal is to delink this committee from the main LAZ body and give it statutory powers of its own to regulate and discipline lawyers away from the glare of socio-political interference. If the LPC were to be delinked, it would have its own management and it could comprise of members appointed or elected by legal practitioners themselves.

Once the LPC is delinked, LAZ can then concentrate its efforts into being the fraternal body that freely engages in the world of ideas. Such a new LAZ can criticise and be criticized without practitioners fearing for their lives. Additionally, such a LAZ can go to court and lobby for socio-political positions without associating those positions to the regulators.

The model I have proposed above seems to comport with modern legal arrangements in England and Wales and other commonwealth jurisdictions. Very rarely do regulators make news commenting on socio-political issues. This role is left to other fraternal legal organisations and associations of lawyers as the regulators concentrate on the actual regulation of lawyers. In Zambia’s sister jurisdictions such as Canada, as an example, lawyers are regulated by the respective provincial law societies while the Canadian Bar Association (CBA) remains a fraternal organisation of lawyers based on mutual and voluntary membership. In the United States, most jurisdictions have a similar arrangement. The American Bar Association (ABA) is a fraternal organisation whereas each state has its own bar regulators. Both the CBA for Canada and ABA for the USA freely comment on socio-political issues, lobby on behalf of lawyers, present and recommend training for lawyers, and provide a fellowship of some kind for lawyers. In South Africa lawyers also have a voluntary fraternal organisation while the regulatory side is handled by a different body depending on the province.

Such arrangements would be much more suitable for Zambia as well. In our democracy, it becomes necessary to split regulatory and fraternity functions of the Law Association of Zambia.

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Suggested Citation: Munshya, E. (2016). Splitting Regulation from Fraternity: Reforming the Law Association of Zambia. Elias Munshya Blog. (www.eliasmunshya.org) June 30, 2016

 

 

Dig Deeper & Pay: The Past Newspaper’s simplified guide to paying tax in Zambia

E. Munshya, LLM, MBA, MDIV

Let us suppose that a Mr. Derrick Mumba goes into the business of selling newspapers in Milenge. Let us call it, The Past Newspaper (no pun intended). Mr. Mumba intends to work in a field he is passionate about and to make some money out of it. This would be a win-win.

The government of Zambia (GRZ) makes its money from people like Mumba using an old fashioned system called taxation. GRZ encourages people like Mr. Mumba to do what they are passionate about, then once they make their money, the government takes a portion of the profits (So unfair, right?). As governments are typically inefficient to collect tax, the legislature creates a firm that would collect taxes on its behalf: Zambia Revenue Authority (Zambia) and Canada Revenue Agency (Canada).

The legislature gives ZRA and CRA extensive powers to search your pockets and determine how much you made last year. It can also search your cash register or do some nasty stuff, as allowed by law, to chase your income.

Let us assume that Mumba sells newspapers for K1,000,000.00 in 2010. Obviously, the legislature will state how much tax rate he should pay out of his profits. Mumba arrives at his profit after he has taken out all the operations, capital and several other expenses (transportation, ZESCO, and rent). After Mumba has taken out all the expenses you can ever think of, and as far as the law would allow, he is required to declare a profit and from that profit pay tax to ZRA. Let us for argument’s sake say Mumba made a profit of K100.00. At the simple rate of 10%, Mr. Mumba is supposed to pay a K10.00 to ZRA.

Ironically, the law gives ZRA powers to make Mumba its agent. Mumba’s workers are supposed to pay taxes from the salary that he pays them. ZRA requires Mumba to withhold an employee’s tax (PAYE). Workers in Zambia pay taxes by law. Parliament determines the rate. Some workers are taxed at 0%, meaning Mr. Mumba cannot deduct any money from their salary. If a worker’s tax rate is 5%, Mumba is expected to act as the agent of ZRA to collect that amount. Suppose Sibeso works for Mr. Mumba and her salary is K50.00, Mr. Mumba is supposed to act as the agent for ZRA and withhold K2.5 from Sibeso for further remittance to ZRA. That K2.5 is not Mr. Mumba’s, it is ZRA’s.

Mumba also interestingly sells adverts in his papers. A Dr. Ng’anga Soweto places an advert in The Past to woo customers to his Traditional Clinic in Kabulonga. Each person who buys space in the Past Newspaper is supposed to pay a tax to ZRA. For some reason ZRA really likes to tax people and finds creative ways to get money from ordinary people like you and me. Dr. Ng’anga’s advert costs K20.00, but ZRA asks Mr. Mumba to be its agent and collect K1.00 tax, on top of the K20.00. That extra K1.00 is supposed to be remitted to ZRA, it does not belong to Mumba.

From our illustration, Mr. Mumba has at least 3 payments he is supposed to make to ZRA: a portion of his profit, withheld PAYE and tax on adverts. Sounds simple, right?

With all these payments however, Mr. Mumba, in this imperfect world, might deduct from his workers and yet fail to take the money to ZRA on time. As for the money from Dr. Ng’anga, Mr. Mumba might conveniently forget. Anything can happen. So to force compliance, the law gives ZRA very strict regulations to ensure that Mr. Mumba pays ZRA its money.

Years may pass by as Mumba neglects to remit ZRA money. ZRA may send its officers, but Mr. Mumba apparently could have a very powerful angel from Independence Avenue. Each time ZRA goes to Mr. Mumba’s Past Newspapers to collect the remittances, they may not succeed because Mr. Mumba has friends in high places guarding his Ubufumu offices.

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

No one can hide from ZRA forever as angels frequently change addresses from Independence Avenue to Embassy Park. ZRA may finally get through and send Mumba the bill. The law recognises that ZRA might be mistaken in the way it calculates how much Mr. Mumba owes. In those circumstances, parliament has created a tax tribunal. This is a quasi-judicial body arbitrating tax disputes between ZRA and the taxpayers. Mr. Mumba may state his case and say that ZRA is mistaken as Mr. Ng’anga did not pay the whole K20.00. The tribunal will look at the evidence and make its ruling. Mumba may not end there, however, if he is not happy with the ruling of the tribunal he then can go to the High Court. The High Court will hear the matter. If Mumba is not satisfied with the High Court, he can appeal to the Supreme Court. Through all this, and as Mumba goes on doing business, he is still expected to continue collecting money on behalf of ZRA and to remit it. As long as Mr. Mumba is in business he is supposed to act as ZRA’s agent. The agency relationship does not terminate simply because Mumba has taken ZRA to court.

When the Supreme Court finally rules, and it would usually rule in favour of ZRA (Tax Law is not very flexible), Mr. Mumba is supposed to dig deeper and pay up. If he can’t pay, unfortunately, ZRA has wide powers to liquidate Past Newspaper assets in Milenge to pay the debt Mumba owes from unremitted PAYE, Dr. Ng’anga’s tax, and profits of his business.

Sounds familiar, doesn’t it?

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