Tag Archives: Elias Munshya

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

The Philosophy of Judicial Reasoning: Making sense of Zambian Constitutional Court’s “14-days” ruling

By E. Munshya, LLM, MBA, MDIV

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Of the Alberta Bar

The decision of the Constitutional Court to not hear Mr. Hichilema and Mr. Mwamba’s presidential electoral petition is really not about which of the several views expressed by the judges is “right” or “wrong”. Both the minority and the majority in the case may have been right. Judicial decision making is sometimes not about how judges choose the correct decision from an incorrect one, but how they choose between two competing decisions that could both be necessarily correct. A decision of the Constitutional Court does not become legally right because it is morally superior to an alternative decision, but it becomes legally right because it has been chosen by a majority of judges to be so. Judges do not objectively decide and select the inherently correct decision between competing decisions, rather the decision they make becomes legally right making their choice the law. Legally right or legally correct decisions become correct because judges say so and not because the decisions themselves are objectively or inherently correct.

To put it in other words, some legal questions do not have the objectively right or wrong answer. The question of 14 days does not rise or fall on what is right or what is wrong, but rather on the decision of the majority judges at a particular time. From the “14 days” decision of both the majority and the minority judges, it is clear that the decision could have gone either way. The 3-2 decision was very close and the Chibomba-Munalula minority may have carried the day had one more judge from the Sitali-Mulenga-Mulonda majority agreed with them. How do we make sense of this?

First, the law cannot objectively resolve most of our political problems. We need political solutions to political problems. The idea that we can always run to the court to resolve our political disputes is practically untenable. It takes more than the courts of law to make democracy work. For example, Justice Munalula in her minority opinion states that the ConCourt needed to hear the petition to provide some healing for the nation. The truth is there is no ruling from the ConCourt that would bring healing to the nation. Healing is not a product of legal shenanigans, it is a product of political will and action. The court cannot through evidence help heal a nation, in fact, it could lead to more difficulties.

Second, an over-reliance on judges for absolute and ultimate justice is a self-defeating goal. Human experience should make you realise that judges could rule against your position, not because it is a wrong position, but rather due to several other considerations. Maturity helps you deal with such disappointments.

Third, the idea that the law is blind is true only to an extent. There are several instances where the law is and should be blind, but no one in the common law tradition, world-over, has ever held the law to those blindfolded statues. The law may as well have feelings, eyes, and a big mouth. The law grows according to the magnanimity of those who lose under its breath, and win under its wind. Right from the likely tribal split of the Constitutional Court itself should give you an idea that the Court is not an objectively moral compass that churns out court rulings like a blindfolded woman. It is a little more complex than that.

Fourth, the philosophy, and practice, of law is very consistent with a liberal outlook on life and human experience. The law could lead to conclusions that are unfair to a party, as long as the outcome is part of the reasonable conclusion. This does not justify unfairness; it only shows the fragility of our unbridled faith in having the justice system resolve all of our problems. How can the law resolve the problems Mr. Hichilema is alleging? Particularly the more academic and philosophical ones?

Fifth, legal legitimacy should be taken as a whole, as the whole system. Immediately we begin analyzing the integrity of a judicial system on the basis of one or two court rulings, we lose the true picture of our judicial structure. Judges may have ruled differently on the 14 days issue, but they ruled unanimously on the question of cabinet ministers not to stay in office beyond the life of parliament. Zambia’s Constitutional Court cannot just be judged by the 14-day ruling, but by the entire intercourse of rulings it has released in its life. You cannot blame a court just because it has not lived to your expectations on Mr. Hichilema.

It appears like we have now become a very litigious nation. I now hear that several citizens are now taking Constitutional Court judges to the Judicial Service Commission. What nonsense! We cannot go on like this. This is becoming absolutely ridiculous. We must be more gracious to our judicial system and give the Constitutional Court some time to grow and develop. The idea that each of the parties that is aggrieved should now go the Judicial Service Commission to have judges fired is repugnant to common sense.

Judicial reasoning is not an exact science. It has never been. From the English roots of Zambia’s constitutional jurisprudence to the American constitutional order and back to Zambia’s new Constitutional Court era, judicial reasoning in constitutional matters is chaotic and constantly changing. Respect for the law is never about respect for the objective validity of the law, but it is always the respect for the heritage of the societies that have chosen to be guided by such legal structures.

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Rev. Elias Munshya is a Zambian theologian and lawyer practicing at West End Legal Centre in Calgary, Alberta, Canada. In addition to several degrees in theology, he holds an LLB from England, an LLM from Northwestern University in Chicago and an MBA (law) from Wales.

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Elias Munshya of the Alberta Bar

Learning from King Cobra: Sata, Hichilema and the politics of electoral defeat

By E. Munshya, LLM, MBA, MDIV.

There is no better way to win an election than to win an election. For those who win elections, they win elections by winning elections. Those who want to win an election must win an election by winning an election and not winning a court case. In 2006, Michael Chilufya Sata of the Patriotic Front lost that year’s presidential election very terribly. He lost to President Mwanawasa who commanded a comfortable lead all over Zambia except for the urban areas and Bemba-speaking areas. Sata whined a little bit but went to work. In 2008, he lost again. This time to Rupiah Banda. Sata fumed pouncing all over Mulungushi Conference Centre and the Supreme Court grounds. But for some reason, he held himself back and took control of the narrative. He realized his strengths and weaknesses. He saw his losses and found an opportunity. He went to work. That is the behaviour of a winner.

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E. Munshya

In 2008, Sata looked at the electoral map. The urban areas of Lusaka and Copperbelt were in his bag, Bemba areas of Northern and Luapula were also in his grasp, but to win the presidency he needed to turn around a non-Bemba area, so he went for a Barotse offensive. The time for the King Cobra to charm the Barotse had come. Right in the heartland of Barotseland, Sata took a message that the Barotse wanted to hear – a message that would honour some aspects of the Barotseland Agreement of 1964. From 2008 to 2011, Sata worked on his message. Taking advantage of Rupiah’s Barotse lapses, he collaborated with Inonge Wina and Mubukwanu. And boom! In 2011, Barotseland had given Sata the votes he needed to beat Rupiah. Sata’s Barotse votes were very significant in that he did not just do “well” or do “better” he actually won big and got seats right in the Barotse heartland. That is how you win. You learn from your weaknesses, tweak your message, and go for an electoral offensive.

Come 2016, Hakainde Hichilema has an opportunity to turn his loss into something meaningful. Mr. Hichilema insists that he has won the election, but he has not won anywhere else apart from his strongholds of Southern, Western and Northwestern Provinces. He has no Member of Parliament in Bemba areas, no MPs in the East, and certainly no MP in urban Copperbelt or urban Lusaka. Without MPs in these areas, Mr. Hichilema has failed to replicate the Sata strategy of turning a hostile constituency into a friendly electorate. For Mr. Hakainde to win he did not need to just do well in Bemba and urban areas, he needed to have one or two MPs in those areas. Having MPs does not necessarily correlate with winning the presidential vote, but it is very significant in telling us the trends of where the presidency is leaning. It is nearly impossible for a candidate to win the presidential election without some corresponding increase in the number of Members of Parliament. You cannot win the presidency in Zambia without the good number of MPs being on your side, even if the presidential election is a separate election from that of MP.

While it is true that Lungu’s incumbency may have disadvantaged the opposition, we have a long history in this country where the opposition has beaten the incumbent – in both 1991 and 2011. It is doable. Blaming Lungu’s incumbency is not good strategically, Mr. Hichilema must take some responsibility and do better next time around. He is still young. He does have an opportunity to turn things around and if he stayed on, he could scoop 2021.

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Hakainde Hichilema

Mr. Hichilema’s continued overconfidence is a put-off. I doubt if anyone stole his votes. I will leave that up to the determination of the venerable Constitutional Court. However, to the extent that we provide for the ruling of the Constitutional Court on this matter, we can safely speculate that Mr. Hichilema lost because Mr. Hichilema lost. No one stole his votes. The urban areas have not yet turned away from the Michael Sata “Don’t kubeba” coalition. That coalition is still intact. Consequently, insulting the Michael Sata urban coalition is not a good strategy for the UPND. The “dununa reverse – don’t kubeba” urban coalition needs to be courted not insulted. All these slights springing up in the media about how poor urbanites will continue living in poverty due to their continued support of the PF and Lungu exposes something that the UPND might need to understand about urban politics. Lungu won because he has won hearts of the suffering poor – the very suffering Zambians in our compounds. Unless the UPND figures out why the urban poor are still voting overwhelmingly for Lungu, their relevance will soon fade. The UPND must stop insulting and shaming urban areas and get to work.

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President Lungu

Mr. Hichilema has an opportunity. For a start, he needs to go to both Luapula and Northern and thank this constituency. He quickly needs to capitalize on the election and cement the officials and structures in these areas, as he will need them for 2021. The more time he spends in Lusaka at his mansion and at court, the more time he loses on cementing the support he needs for 2021. For now, unfortunately, the PF has already seized on the opportunity to tribalize Mr. Hichilema’s 500,000 vote tsunami from Tonga areas. He needs to be in charge of the narrative, but the more time he spends in Lusaka the less likely he is to recast the tsunami. If the tsunami is recast and told by the PF, UPND will lose any hope of getting Luapula and Northern in 2021. The PF could take the tsunami numbers and try to convince Bemba voters that HH tried to capitalize on the Tonga tribal vote (this is of course not true, but Zambian politics is not about the truth, but perceptions). Mr. Hichilema stands a good chance, and I hope he will seize the opportunity.

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

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

 

Separation of Powers Betrayed: Why Justice Lengalenga got it wrong in the GBM case

E. Munshya, LLB, LLM, MDIV.

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

In the Zambian doctrine of separation of powers, each branch of government has a distinct role to play and no one branch should interfere in the other’s function. Parliament makes the law, the executive implements the law while the judiciary interprets the law. But this doctrine is quite subtle. Our system of government does allow for some overlap. For example, the executive is almost exclusively made up of members of parliament and the president as head of the executive is a principal actor in the legislative process. As argued below, while the judiciary is the ultimate interpreter of the law, both parliament and the executive to have interpretive functions. At the heart of Justice Lengalenga’s March 23, 2016 ruling in the Geoffrey Bwalya Mwamba v. the Attorney General, the Speaker of the National Assembly, and the Electoral Commission of Zambia (the “GBM 2016 case”) is the question of whether the Speaker as head of parliament had the power to make the declaration that GBM’s Kasama seat had become vacant. Edwin Mbewe, a legal commentator and 4th year student at the Zambia Open University Law School has correctly observed that the reason for Justice Lengalenga’s decision (known as ratio decidendi in legal jargon), was that the Speaker has no powers to declare a seat vacant and that function is purely the preserve of the High Court. It was this ratio that led Madam Justice Lengalenga to reverse the Speaker and to grant the Kasama parliamentary seat back to GBM. My concern with Justice Lengalenga’s ruling is that it betrays the doctrine of separation of powers and the ruling misconstrues the High Court’s role when interpreting the law.

While it is true that it is the High Court’s role to interpret the law, it is necessary to understand circumstances under which such a duty arises. In Zambia’s political and legal practice, the High Court is not the only body that interprets the law. It is fundamentally problematic to hold that only the judiciary can interpret the law. In actual fact, everyone interprets the law, including the police on the Chipata highway, administrative bodies in Mpika, teachers in Chiwempala, plumbers in Kasompe, tamanga boys of Katongo Street, and fishermen in Milenge. The judiciary only comes in to resolve issues when there are legal disputes. Judicial interpretation of the law is tied to its role as an arbiter of disputes. When we refer to judicial interpretation, we are in essence referring to a form of legal dispute resolution. The laws of Zambia do not wait for the judiciary’s active interpretation for the laws to be valid. The laws do not remain dormant until the judiciary brings them alive through an interpretation. Two of the branches of government have a proactive duty to function, the judiciary, on the other hand, does not have a proactive duty. The judiciary cannot go on rampage trying to “interpret the law.” The judiciary comes in if and when there is a dispute among competing interpretations. Articles 71 and 72 of the Constitution of Zambia does state that only the High Court can settle a dispute concerning the loss of a parliamentary a seat, but Justice Lengalenga’s judgment failed to appreciate the fact that other clauses within 71 and 72 provide different ways a seat could become vacant without necessarily involving the High Court. For example, if an MP dies, you do not wait for the High Court to declare a seat vacant. Additionally, an MP who ceases to be a citizen of Zambia ceases to be a member of parliament too. You do not need the High Court to declare a seat vacant in those circumstances as the Speaker can take note of the facts and make a determination that a seat has become vacant. Conversely, the Speaker cannot declare a seat vacant if the seat is contested in court between two parties that are claiming the seat as happens during an electoral petition.

Where an MP deliberately chooses to leave the party that sponsored them to parliament and then becomes a member of a different political party, it is within the Speaker’s powers to declare their seat vacant without the need to go to court. This is exactly what happened with GBM. Justice Lengalenga by restoring the parliamentary seat to GBM had out-rightly ignored GBM’s own actions of leaving the Patriotic Front to become a member of the United Party for National Development. For clarity, let us look at some pertinent facts. In 2014, GBM ran into some discipline issues with his party the Patriotic Front (PF). The PF moved to discipline him, but before they could reach him, he went to the High Court and obtained an injunction against his expulsion. After the commencement of that legal action against the PF, GBM escalated issues and subsequently accepted the position of vice-president of the UPND. The Zambian constitution did not and does not allow dual party membership for MPs.

Even if political party constitutions permitted dual party membership, the republican constitution does not permit it. An MP who becomes a member of a party other than the one that sponsored them to parliament ceases to be an MP. Full stop. When GBM became a member of the UPND (evidenced by his acceptance of the position of veep and his own sworn affidavit) he ceased to be a Member of Parliament. It was the Speaker’s right and responsibility in such circumstances to acknowledge that fact and inform the Electoral Commission of Zambia that Mr. GBM was no longer a member of parliament. There was no need to wait until the GBM v PF case was disposed of because the GBM v PF case concerned a matter completely different from what the Speaker was dealing with. Justice Lengalenga did not create this distinction in her mind leading to a very erroneous outcome that undermines the principle of separation of powers. She went on to answer questions that were irrelevant to the issues at hand.

No one took the seat away from GBM, he did it by himself and the High Court was wrong to give him back the seat which he voluntarily abandoned. It does not matter that Mr. GBM may not have intended the consequences of his actions. He cannot be vice-president of UPND and PF member of parliament at the same time, no matter how you spin it.

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Suggested citation: Munshya, E. (2016). Separation of Powers Betrayed: Why Justice Lengalenga got it wrong in the GBM case. Elias Munshya Blog (www.eliasmunshya.org) (March 31, 2016)

Geoffrey Bwalya Mwamba v Attorney General & Others – 2015.HP.1279-2

 

 

When London Calls: Musa Mwenye, legal ethics and the politics of client confidentiality

E. Munshya, LLB, LLM, MDiv.

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

There is nowhere to hide anymore. Big corporations that dare pollute our rivers and poison our waters should be held accountable anywhere around the world. A word of caution to big companies, please treat all stakeholders well and be socially responsible. Polluting our rivers and poisoning the sacred springs of Chingola will result in dire consequences for you. Companies such as Konkola Copper Mines and Mopani Copper Mines now have the added responsibility due to one important fact: the world is watching. Globalisation now has legal implications for global corporations. As they mine copper in Solwezi and as they dig for gold in Kolwezi, multi-national companies can now be sued for polluting the Kafue River in a London court or in an Alberta court. A Zambian plaintiff who has suffered harm due to the negligent conduct of big companies can now with the click of a button hire a lawyer in London to hold London listed companies to account.

This I believe is what happened in Dominic Luswaniso Lungowe and others versus Vedanta Resources PLC and Konkola Copper Mines, a case which is making its way in London’s High Court of Technology and Construction. This case involves several of our people who are claiming that they suffered various health problems due to KCM’s negligence. Lungowe sued in London and obviously, the London court had to enquire into the issue of jurisdiction and venue: was London the best court to litigate KCM’s alleged misconduct which took place in Chililabombwe’s Kafue River? Before the London court even goes ahead hearing the matter it must satisfy itself that the matter is legitimately before it. Lungowe’s London lawyers needed to convince the London court that the matter was legitimately before it because KCM and its parent company are listed in London and that Lungowe and others stand a better chance at getting justice in London than Lusaka. To convince the London High Court, Lungowe had to bring some legal experts from Zambia to buttress the position that the plaintiffs are likely to receive justice in London. Lungowe’s London lawyers found an expert: Musa Mwenye SC. It is this expert testimony Mwenye gave in the London court that really angered President Edgar Lungu.

musa-mwenye

Musa Mwenye, SC

Lawyers like Musa Mwenye should not have to suffer for doing their job. Our society should not impute upon the lawyer the misconduct of the lawyer’s client. Lawyers have very difficult tasks to perform in representing clients, both savoury and unsavoury ones. No lawyer should be crucified simply because they were doing their job either of representing a criminal or representing people like Lungowe who are claiming to have suffered severe health problems as a result of the negligent conduct of a London listed corporation. Even if Mwenye were just appearing as an expert witness in London, he should not be made to suffer for helping Lungowe and others find justice in London. The decision to sue in London is a luxury afforded to Zambian citizens in this globalised world. Our citizens should not be demonised for going to London to sue a London listed company that pollutes their drinking water. If our people were to want to sue in a Canadian court, they will find very friendly counsel to help them navigate Alberta Court of Queen’s Bench! In London, Mwenye’s testimony was to the effect that Lungowe and others would stand a better chance at accessing justice in London than they would in Zambia. Musa Mwenye may have been right. But President Edgar Lungu in a sense was justified in demanding better conduct from Mr. Mwenye.

Mr. Mwenye is the past Attorney General of the Republic of Zambia. His client was the juristic person of the Republic of Zambia. He was leader of the Zambian Bar and principal legal advisor to the executive, the legislature and the judiciary. Mr. Lungowe’s London lawyers found it prudent to engage the expert advice of Mr. Mwenye to testify before the London court why it would be difficult for the plaintiffs to access justice in Zambia. It was indeed a coup, a huge conquest for the plaintiffs. Mr. Mwenye, however, as a former Attorney General should have recused himself from going to London. The same justice system in Zambia was his client, how then can he turn himself against the very client he faithfully served for years? Those who serve as attorneys general should know that Zambia’s justice system is their client. They come into contact with both the good and the bad of our system. The AG knows the inner workings and the flaws of their client. It is unconscionable for them to go and spill the beans in a foreign court about the failing of the Zambian justice system. When a former attorney general testifies against the Zambian justice system in a foreign court, it is not general information they are peddling, it is very specific inside knowledge of their former client. Mr. Mwenye could have recommended other legal experts to travel to London. He had a conflict of interest.

After President Lungu’s outburst, Mr. Mwenye issued a comment to the effect that he was trying to make it easier for the poor of Zambia to have access to justice. I am quite flattered by the State Counsel’s commitment to access to justice for the poor. But I am afraid the honorable state counsel might need to direct his energy to the things that could actually lead to better access to legal services in Zambia. Zambia has very few lawyers. It has about 1,000 lawyers in a country of 15 million people. This lawyer to population ratio makes it impossible for the ordinary poor of Chililabombwe to access justice. I call upon Mr. Mwenye to help resolve this lawyer shortage in Zambia by advocating for better pass rates of lawyers at the Zambia Institute of Advanced Legal Education (ZIALE).

President Lungu’s outburst should be taken in context. The President has not really liked the ex-AG from the time Mwenye stood his ground to take away the acting presidency from Lungu to Guy Scott. I do not think Mwenye’s London conduct deserves sanction. I appeal to the Law Association of Zambia (LAZ) to ignore calls to discipline Mr. Mwenye. This could as well be a learning opportunity for all Zambians and all those those who might be called upon to serve as attorney general of our republic not to go to London or Calgary badmouthing a former client.

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Suggested citation: Munshya, E. (2016). When London Calls: Musa Mwenye, legal ethics and politics of client confidentiality. Elias Munshya Blog (www.eliasmunshya.org) (March 24, 2016)