Category Archives: Zambian Politics

Regulating Lawyers In Zambia: principles and practice

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

Professional regulation of lawyers must be undergirded by several principles. First, the legal profession must be self-regulating. Self-regulation in the context of lawyers means that lawyers license themselves, assess the ritual fitness of practitioners, discipline themselves and promulgate their own rules of conduct. The principle of self-regulation is very important and must always be respected. Lawyers must not be subject to the regulation of the state. Lawyers should license themselves and not give over this cardinal element over to the state. Any amendments to the Law Association of Zambia Act and the Legal Practitioners Act must respect the fact that lawyers must have the room and the fortitude to regulate themselves. It would be very sad if lawyers lost the ability to regulate themselves.

Secondly, lawyer regulation must have the public interest at heart. Lawyers in self-regulating themselves must commit themselves to respecting and upholding the public interest. The question lawyers must ask themselves is: how can we best serve the public? It is service to the public that must the cardinal and driving force behind lawyer self-regulation.

Third, lawyer regulation must take interest in all the elements that make a good, competent and ethical practitioner. Any regulation of lawyers, must also empower the regulator to regulate law schools. Under the current regime, law schools are not in any way amenable to the jurisdiction of LAZ as the regulator. I find this to be very retrogressive. It is important to empower the regulator to have jurisdiction over the quality of legal education students are receiving in law schools. Under our higher education act, Zambians can register a university and establish a law school without input from legal regulators. I think this should be corrected. The regulator must be able to provide the needed academic guidance of what programs of study are acceptable for the future practitioners. There is concern that Zambian law schools are producing sub-standard law graduates. In some cases, LLB graduates of some Zambian law schools cannot string a sensible sentence together! That is very sad and needs urgent improvement. Several jurisdictions have gone on to require that the qualifying law degree be a second degree. Most developed common law jurisdictions such as the US, Canada and Australia now almost require that the qualifying law degree be a second degree. In Africa, there has been chatter that the Nigerian Bar Association would be requiring the qualifying law degree to be a second degree. I have no doubt that making the qualifying law degree be a second degree would help graduate more academically astute LLB holders.

Fourth, the regulator of lawyers must have as its primary role the regulation of lawyers. What I mean by this is that the regulator must concentrate on standards, competence, discipline, licencing, and training of lawyers more than anything else. The Law Association of Zambia Act has a serious incongruity in this regard. It seems like in 1973, parliament created a politico-civil advocacy group and then tasked it to regulate lawyers instead of creating an organisation that regulates lawyers and yet has some ability to engage in politico-civil advocacy. The LAZ Act, as it I had mentioned last week, is very unusual from other legal regulatory acts in the common-law jurisdictions. The objectives of LAZ in the LAZ Act seem to be more focussed on politico-civil advocacy than actual regulation of lawyers. My advocacy is simple in this regard: any association that regulates lawyers, must regulate lawyers first and foremost! This is not the case with LAZ as its home statute makes it concentrate more on politico-civil advocacy than on lawyer regulation. For those interested, just go to the websites of the Law Society of Swaziland, the Law Society of Zimbabwe or check the Malawi legal practitioner act and you will see that Zambia’s LAZ Act has departed quite remarkably from commonwealth norms.

My suggestion here does not in any way mean that lawyers should not involve themselves in politico-civil advocacy. They must. But they must not do so through a regulator. Lawyers must empower themselves and organise themselves in any way they want to exercise their constitutionally protected rights to speech and association, without conflating the roles of the regulator in the process. My solution therefore, proposes to split the current Law Association of Zambia, into two bodies: a regulatory body (to be called the Law Society of Zambia) and a politico-civil fraternal association to be called the Law Association of Zambia. The LSZ will have lawyers self-regulating themselves and concentrating on standards, training, admission, licencing, and discipline. The new LAZ on the other hand can be an all-encompassing voluntary organisation that can participate in society as a civil society organisation. My proposal here is very different from what is being proposed by Hon. Kelvin Sampa who rather than splitting regulation from fraternity, wants to create more associations like LAZ that combine both regulation and fraternity. What is broken with LAZ cannot be fixed by created more LAZs, but by splitting the regulatory function from the fraternal politico-civil advocacy function.

Fifth, the regulator of lawyers must not be concentrated in Lusaka alone, but must focus on the whole Zambia. This principle is very connected to the second principle above. Clearly, out of the 1,000 licensed legal practitioners in Zambia, almost all of them are concentrated in Lusaka. The regulator must make it easier for lawyers to practice outside of Lusaka. Milenge can do with a lawyer. Apart from economic incentives, there should be practical incentives in place to attract lawyers to the Zambian interior. How can this be done? The regulator should do away with the rule that forbids new bar calls from starting their own law firms. The requirement that new calls should work in a firm for five years before they can start their own firm makes no sense at all. This requirement perpetuates the centralism of Lusaka. Obviously, most firms are in Lusaka and so the new bar calls would stay in Lusaka and by the time it is five years, they would have buried their roots deeply into Lusaka making it difficult for young lawyers to spread themselves around Zambia.

Sixth, the regulator of lawyers must explore a formal regulation of paralegals. Almost all other professions have some regulated para-professionals: accounting, medicine, surveying, etc. have their own para-professionals. Zambia does not have paralegals as a recognised and regulated body of professionals. The future regulator must explore how paralegals can be regulated. A regulated paralegal regime may help with access to justice issues.

Zambia’s legal future is very bright and I hope this article will contribute to the debate of how best to regulate an important profession.

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Suggested Citation: Munshya, E. (2017). Regulating Lawyers In Zambia: principles and practice. Elias Munshya Blog. (www.eliasmunshya.org) (April 10, 2017)

September 2016 ©MBKoeth

Elias Munshya, BA, MA, LLB, MA, LLM, MBA, MDIV.  ©MBKoeth

 

 

Does the Law Association of Zambia Act (CAP 31) Over-Politicize Zambia’s Legal Profession?

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

Now that the Zambian parliament could be debating ways to revamp the way lawyers are regulated in Zambia, it is prudent to investigate how the Zambian statutes regulating legal practitioners compare with those in the Southern Africa Development Community (SADC) region. The SADC region obviously includes several countries who do not follow the English common law system. This article focuses only on a handful of countries with the common-law system: Zimbabwe, Botswana, Swaziland and Malawi.

Primary home statutes that regulate lawyers in these countries are very similar to each other. It seems that the respective legal practitioners’ acts were adopted from the English colonial model, and that model remains persistent to date. These home statutes differ in name, but they remain essentially the same in effect and practice – they regulate lawyers.

There are several similarities in the way these jurisdictions regulate legal practitioners. Legal practitioners are governed by a corporate body of some sort. The Law Association of Zambia (in Zambia), the Malawi Law Society in Malawi or the Law Society of Swaziland (Swaziland), are the examples of the common nomenclature.

The statutory objectives of the lawyer bodies can be grouped into three categories:

  • regulatory objectives,
  • representative-fraternal objectives, and
  • politico-civil objectives.

Regulatory objectives have direct bearing on the education of lawyers, fitness for practice, guidelines, licensing and disciplining of lawyers. Representative-fraternal objective are aimed at bringing lawyers together for fellowship, education or promotion of mutual social interests. Politico-civil advocacy objectives aim to participate in the general politico-civil advocacy and uphold the rule of law in their respective countries. It is on this point that one notices the differences between the governing statutes and objectives of the lawyer bodies in Swaziland, Zimbabwe, Botswana, Malawi and those of Zambia. By far, the Law Association of Zambia has more objectives in the third category than any other lawyer bodies in SADC. Could this explain why LAZ is more politically outspoken than their counterparts in the southern region?

The Law Society of Zimbabwe lists 18 statutory objectives and powers. Of these, only 2 can be said to fall into the category of politico-civil advocacy. Twelve statutory objectives of the Law Society of Zimbabwe are aimed at direct lawyer training and regulation. The Zimbabwean statutes do not prioritize politico-civil advocacy for its lawyer body.

Contrasting Zimbabwe with Zambia, the difference is noticeable. The first statutory objective of the Law Association of Zambia is “to further the development of law as an instrument of social order and social justice and as an essential element in the growth of society.” The LAZ objectives do not begin with the regulation of lawyers at all. LAZ objectives seem wider in scope and in their view of the role of the lawyer regulatory body. In fact, of the 15 statutory objectives for the Law Association of Zambia, 8 are dedicated to politico-civil advocacy, a huge reverse when compared to Zimbabwe or Swaziland. LAZ is definitely much more attuned to political and civil advocacy than its counterparts in the southern region. The LAZ Act only dedicates 5 of its statutory objectives to lawyer regulation, training or discipline. It would be interesting to study how we got our LAZ Act. Who drafted it? What made them make LAZ so inclined to politico-civil matters rather than professional regulation by departing so markedly from the colonial model of the legal practitioner’s acts?

The statutory objectives of the lawyer bodies give us a guide as to where it would focus its attention. That being the case, lawyer bodies in Zimbabwe, Swaziland, Malawi, or Botswana focus their attention more on regulation of its lawyers than does Zambia which focus more on the wider advocacy as a custodian of the law for the greater good.

Perhaps as the government and the public are asking questions about how the legal profession may be developed and advanced in Zambia, it could be the time to retool the Law Association of Zambia from a focus on politico-civil advocacy to regulation and capacity building of the profession. Zambia cannot afford to sacrifice lawyer development at the altar of politico-civil engagement. Or if change is too difficult to come by, LAZ could be encouraged to give as much attention to regulation as it does politico-civil advocacy.

I should point out here that the Zimbabwean model is by no means a good standard. But it helps Zambia to realise just how much professional and regulatory development has suffered due to an over-focus on political advocacy.

If we are looking at amending the LAZ Act, I would suggest that we also focus on its objectives or perhaps make the LAZ Act much more inclined towards the profession. Zambia is a democracy and lawyers will continue to play a role in its governance. But Zambia also needs good lawyers who are very well developed in their court advocacy skills and in many other legal areas apart from constitutional or political law. The law is much wider than an over focus on constitutional law and disputes. We need commercial lawyers, legal researchers and indeed maritime lawyers. This can only be achieved by a regulatory body that is truly focused on lawyers serving the public good rather than just engaging in the never-ending political squabbles.

Looking at the recent press statements from LAZ would give you the picture. LAZ was living its statutory objectives by issuing politico-civil statements in almost 95% of the time. The question is, is LAZ as committed to enhancing the legal profession as it is committed to commenting about everything political under the Zambezian sun? If we need a more professional regulator, now could be the right time to do so. But as always, we might need to start from the very statute that put us in this situation – the LAZ Act (CAP 31) that requires reform.

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Suggested Citation: Munshya, E. (2017) Does the Law Association of Zambia Act (CAP 31) Over-Politicize Zambia’s Legal Profession? Elias Munshya Blog. http://www.eliasmunshya.org (March 30, 2017)

September 2016 ©MBKoeth

Elias Munshya, BA, LLB, MA, MA, LLM, MBA, MDIV (of the Alberta Bar) ©MBKoeth

Liberty In Sorrow: Zambia should investigate Iglesia Ni Cristo stampede but unban the church

 

By Elias Munshya, BA, LLB, MA, MA, LLM, MBA, MDIV.

March 6, 2017 was a sad day for Zambia. Eight souls perished in a stampede as they gathered to receive food handouts from a church organisation known as Iglesia Ni Cristo (INC). This church organisation was first registered in the Philippines in about 1914 and from humble beginnings and ridicule it has grown in its outreach efforts around the world. One such efforts in Zambia led to it organising an event where it promised to distribute food hampers to the poor of Lusaka. With this promise, thousands turned out. Perhaps due to poor organisation and lack of good crowd control, 8 of our people unfortunately died. May the souls of our departed rest in eternal peace.

With tears in our eyes, and a strong sense of loss, the government of the republic of Zambia (GRZ) reacted swiftly. Government ministers addressed the nation. They explained what had happened and assured the nation that they are doing thorough investigations. They also expressed profound sorrow from our head of state. Lungu mourned with us. Tyranny, however, must be confronted regardless of where we are at in our heavy hearts. In moments of disappointment and pain, we must remain vigilant to safeguard the most sacred of our liberties. Nothing erodes liberty like giving in and giving up in the face of fear. Mourning we needed to mourn and investigations we needed to explore, the state, however, in addition to other measures decided to ban the Iglesia Ni Cristo. And this honour apparently fell in the hands of the Minister of Religious Affairs and National Guidance, Rev. Godfridah Sumaili. She addressed the nation and announced the ban of the Church of Christ (Iglesia Ni Cristo). It is my opinion that the ban was excessive, unnecessary and must be vigilantly rejected. For the following reasons.

First, the primary role of the church such as INC is religious worship. INC has several members in Zambia. They mostly meet in smaller houses of worship and have a very reasonable number in attendance each week. INC, however, organises a few large meetings such as crusades. It so happens that the church perhaps punched above its weight and underestimated how many people would show up to receive free food. What Rev. Sumaili perhaps needed to do was to ban the church from having large gatherings, rather than banning it from meeting at all. Banning the church from worship disproportionately violates their freedom of worship. It does not make sense to ban a church from worshipping for contravening the law that applies to something they did outside of worship. If for example there is a mine accident, it is reasonable for the state to intervene and ban a company from mining until safety issues are resolved. That is perhaps what was needed here – to ban the church from holding large gatherings while leaving its freedom to worship intact. The problem was not worship, the problem was the church holding a large gathering with little to no crowd control.

Second, the ban sends a chill down the spine of all religious denominations in Zambia. The Ministry of Religion and National Guidance must have no role in banning churches. It does not register them and therefore it has no business banning institutions that it does not register or regulate. Consequently, the government of the republic of Zambia does not regulate Zambians’ exercise of the freedom of worship. If we let Rev. Sumaili’s ban in place, it will set a very bad precedent where she might have the liberty now to begin banning churches indiscriminately. Political power need not be unreasonably trusted. Rev. Sumaili could be a good person, but her exercise of state power must be tempered by reasonableness. Erosion of liberties does not happen suddenly. It always starts very subtly. It is up to Zambians to be vigilant and push back against the state’s interference in religious liberties.

Third, the Ministry of Religion and National Guidance (MRNG) is a new ministry trying to find its raison d’etre. We must not let that be the banning of churches for reasons completely unrelated to Zambians’ freedom of worship. The dread we must all have with a ministry that seems to be wanting to regulate how Zambians worship is the impact that such a ministry may have on constitutional liberties. Zambia is a Christian nation. But the Christian nation declaration confers no reliable or enforceable rights on Christians as opposed to others. The Zambian state lacks the competence to arbitrate between competing religious doctrines. The MRNG should know that it has no role and no business whatsoever in guiding how Zambians will choose to worship or not worship. If at all there is any misunderstanding as to the role of the MRNG and its minister, let it be known, that Zambians will not sit idly while the state plays with their liberties like ping-pong.

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E. Munshya, BA, LLB, MA, MA, LLM, MBA, MDIV

Fourth, I am aware that Zambian government ministers are mostly people of conscience and the constitution accords them the liberty to worship. But the individual ministers’ religion should have no bearing whatsoever in how they promulgate public policy, particularly as far as churches and religion are concerned. The Zambian state has no business regulating how Zambians choose to exercise their constitutional liberty to worship. A few years ago, when around Easter police and immigration officers raided churches to hunt for illegal immigrants, I condemned such activities because they disproportionately targeted religious denominations. The state must not be sending guns to disrupt people gathered to worship God. The Zambian constitution’s religious liberty is afforded to both legal residents and illegal residents. The state should not be barging into churches to arrest worshippers who do not have immigration papers. If the state wants to arrest illegals, let it do so anywhere else and not in church. Religious freedom is too precious a liberty to sacrifice at the hand of political convenience.

I urge Hon. Sumaili to reverse her ban on the Iglesia Ni Cristo. The ban makes no sense and it is not rationally connected to her trying to prevent another stampede from happening. Stopping INC from worship limits the church members’ freedom of worship. If it is the stampede the state wants to prevent, it can take measures aimed at reducing those stampedes. Banning the church out-rightly is disproportionate and sets a very bad precedent. And we must not allow that to happen. Not in Zambia.

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