Tag Archives: Michael Sata

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

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

 

 

Justice Mushabati and the Electoral Commission of Zambia are Wrong on the Grade 12 Requirement

E. Munshya, LL.B., LL.M., M.Div.

Justice Christopher Mushabati, a commissioner at the Electoral Commission of Zambia (the “Commission”) has issued what seems to be an official directive from the Commission about the Grade 12 requirement for running in the 2016 elections. According to him, only a school certificate as defined by the Examinations Council of Zambia (the “Council”), will be used to satisfy the constitution’s Grade 12 requirements. Further, he has stated that those with tertiary education such as a degree, but do not possess the Council’s school certificate will not be considered. Justice Mushabati has additionally stated that this is the Commission’s official position and those aggrieved with the Commission’s interpretation of the 2016 constitution should take the matter to the Constitutional Court for determination.

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

Administrative bodies such as the Electoral Commission of Zambia and the Examinations Council of Zambia are expected to interpret the constitution and apply it accurately.

Particularly, the Commission as the body tasked with the conduct of elections in Zambia has the responsibility and the duty to interpret the constitution correctly and in keeping with trite constitutional principles. The problem here is not that the Commission has no responsibility, but rather that the Commission has taken a very wrong approach in the way they have interpreted the constitution’s Grade 12 requirements. Nowhere in the constitution is it stated that the School Certificate is “the” qualification for running. The constitution states that a person running for office must have the “minimum” of “Grade 12 certificate” or its “equivalent”. By its insistence that all candidates produce Grade 12 certificates, the Commission has made Grade 12 not as the minimum but as the only qualification thereby ignoring a clear constitutional imperative. Had the constitution sought to make Grade 12 the only qualification, the constitution would have so stated. It could have stated that a candidate must have a “Grade 12 certificate”, but the constitution has used words such as “minimum” and “equivalent”. With due respect ECZ commissioners: Mushabati, Chulu and Ng’andu have no right to read into the constitution their own wishes, no matter how noble.

Justice Mushabati and the Commission are wrong when they state that those with degrees but do not have secondary school certificates would not be considered. The honorable justice seems to be speaking like one who has not lived in the realities of our times. It is actually not true that one cannot have tertiary education unless they have secondary education. The idea that a degree or diploma held by a person who has no Grade 12 certificate is inferior to the one held by a Grade 12 holder is actually total nonsense. World-over, people have gone on to university and held higher graduate degrees without secondary school certificates. In any case, Justice Mushabati should know that a person with a degree or college diploma can still demonstrate that their degree is at least academically equivalent to a Grade 12 certificate. No matter how you look at it, there is no basis for Justice Mushabati and his Commission to exclude degree or diploma holders from running for office on account of a lack of a Grade 12 certificate.

High School Transcript for 10072114

Grade 12 Certificate

Justice Mushabati says that those aggrieved should go to the Constitutional Court to challenge the Commission’s interpretation of the law. This idea that all of our disputes should end up in court is really counter-productive to the Zambian cause. We cannot live in a Zambia where even straightforward things should end up in court. We should only go to court to have courts help us resolve real constitutional disputes. The Grade 12 dispute that Justice Mushabati and the Commission are shoving down our throats is a very trivial dispute that can be resolved without resorting to litigation. But even if it were to end up in court, I am very confident that the Constitutional Court will hold that a person with any tertiary education either has an education superior to Grade 12, or does have an education that should be considered “equivalent” to Grade 12 education. At what cost, should we be going to court for this straightforward matter? Justice Mushabati and the Commission already have a tax-payer funded Attorney General as their lawyer, I would advise them to consult with Mr. Likando Kalaluka before they even begin making pronouncements that would be indefensible in the constitutional court. In any case, the taxpayers should not be made to foot the bill of court hearings before the Constitutional Court for a matter that should be straight forward. The sheer arrogance of asking that a Milenge aspirant go to the Constitutional Court to find redress for something this straightforward makes me cringe.

I appeal to the political parties in Zambia, to put aside their obsession with violence and engage Justice Mushabati and his Commission to come to terms and agreement over some of these disputes. Justice Mushabati and his fellow commissioners at the Electoral Commission of Zambia might have very good wishes about Grade 12, but they cannot put into the constitution their own ideas of what the constitution should mean. As stated by the late Justice Scalia, the “constitution says what it says and it does not say what it does not say.”

We appeal to President Lungu, president Hichilema and all stakeholders to let the Commission know that this matter can be resolved without the need for expensive litigation, but if Justice Mushabati wants to go to court, Zambians are ready to meet him there. But again, at what cost?

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Justice Christopher Mushabati, Electoral Commission of Zambia (Picture courtesy of Qfm)

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Suggested citation: Munshya, E. (2016). Justice Mushabati and the Electoral Commission of Zambia are Wrong on the Grade 12 Requirement. Elias Munshya Blog (www.eliasmunshya.org) (March 17, 2016)

Grade 12 Certificate Is Not the Only Qualification, Stop Demanding It

E. Munshya, LLB., LLM, M.Div., MBA

To borrow from the late Justice Antonin Scalia, Zambia has a written constitution which “says what it says and does not say what it does not say”. Barring some concepts that are deeply tied to constitutionalism, the Zambian constitution should be interpreted from the intention of its written text.

It is not surprising that in our constitution making process, we tend to intend to include clauses into the constitution so as to bar certain elements in our society that we do not like. In 1996, Chiluba, Miyanda and Sata used that constitution to try and block people like Kaunda whom the MMD top brass perceived to be of Malawian parentage. However, intention when making the constitution is one thing and the meaning it is assigned after adoption is quite another. If the intent of the MMD in 1996 was to block Kaunda, the language used in the amendment of that constitution was so vague as to render the “parentage clause” useless particularly as far as people like Kaunda whose parents were far older than the nation of Zambia (which was only created in 1964). Again, a literal interpretation of the constitution won the day over the intention of the framers of the constitution who thought that they were excluding Kaunda and his Malawian relatives. Indeed, Chiluba himself got ensnared by the amendments when he was sued by Mr. Mbikusita-Lewanika. Lewanika alleged that Chiluba was of Congolese parentage and that he was disqualified from the presidency. The Supreme Court held that the parentage clause was essentially useless in its Lewanika ruling.

In 2016, we face a similar but much more sinister issue: Grade 12 requirement. I have written about it in the past. Some of the big wigs in the Patriotic Front may have pushed through the Grade 12 requirement as a way to fix some political players they perceive to lack a Grade 12 education. Unfortunately, the text of the constitution of Zambia does not say what they think or intended it would say. The constitution of Zambia says that for a person to qualify as a candidate in the elections, they must have a minimum grade 12 certificate or its equivalent. Several words are important, “minimum”, “Grade 12 certificate”, “or”, its “equivalent”. The constitution does not say that Grade 12 is “the” qualification. First and foremost, Grade 12 certificate is not the qualification. All those promoting Grade 12 certificates as the qualification are wrong. It is just one of the qualifications, but it is not the only qualification.

Second, this Grade 12 certificate is the minimum. What this means is simple: we have a minimum and then we have a maximum. The constitution has not prescribed the maximum; it has only prescribed the minimum. This should be simple to understand, anyone who has a tertiary education has a qualification that is superior to secondary education. Tertiary certificate holders do not need to show a Grade 12 certificate because Grade 12 is the minimum, but anyone who has the maximum may not need to show the minimum. The constitution does not say people must have Grade 12 in addition to other qualifications. The constitution could have said that, but it does not. The constitution has left it open: Grade 12 is not the qualification; it is only but one of the qualifications. It is a minimum qualification.

Third, the constitution then uses the word “equivalent”. I submit that it is only a court of law that can authoritatively determine what is equivalent in this matter. The Electoral Commission of Zambia and the Examinations Council of Zambia lack competence to determine what is equivalent to Grade 12 as far as meeting this constitutional requirement is concerned. I must make it very clear to both ECZs, that they should be very reasonable in the way they approach this issue. They should not come up with facetious descriptions that exclude our citizens from participating in the sacred sacrament of elections. The way I understand it, the constitution has left the possibility for a candidate in Milenge, as an example, to argue before the constitutional court that a Grade 7 education attained in Milenge which had no secondary school until 2005 must be adjudged as equivalent to a Grade 12 education obtained by the privileged of Lusaka. There cannot be similar standards of education in a country which has rural areas with no access to secondary education! Equivalency is key.

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

Apparently, the Patriotic Front legal advisor has sent out an advisory to prospective candidates to have their Grade 12 certificates verified by the Examinations Council of Zambia. According to Mr. Tutwa Ngulube, the Electoral Commission of Zambia will only accept certificates that are verified by the Examinations Council of Zambia. I cannot verify whether the elections body is actually asking for verification of G12 certificates, however, I am surprised by what Mr. Ngulube is saying. Clearly, Mr. Ngulube is putting words into the constitution to make it say what it does not say. Again, a Grade 12 certificate issued by Examinations Council of Zambia is not the qualification, it is only one of the qualifications that range from anything equivalent to Grade 12 to anything higher than secondary education. Since Mr. Ngulube acts for the ruling party, his pronouncements might be mistaken for government policy. We all need to ignore this gentleman and wait for ECZ to give us clear directions. Let me emphasize, ECZ must give effect to the constitution and not dream up its own qualifications.

If Mr. Ngulube is so concerned, why is he not asking that candidates also verify their Green National Registration Cards with Home Affairs? If he can’t demand for verified NRCs where on earth does he get the guts to ask for verified Grade 12 certificates? I think, I have got the answer: some in the Patriotic Front want to use the Grade 12 requirements to fix each other. Fortunately for us, the constitution has no room for petty squabbles involving gossip, umulomo no bufi about whether Chishimba Kambwili has a Grade 12 certificate or not. The man has a degree and that alone would satisfy the requirements of this constitution, without having to provide a certified copy of a Grade 12 certificate.

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Citation: Munshya, E. (2016). Grade 12 Certificate Is Not the Only Qualification, Stop Demanding It. Elias Munshya Blog (www.eliasmunshya.org) (March 3, 2016).

High School Transcript for 10072114

Munshya wa Munshya’s Sugo Certificate

 

 

 

 

Alliances of the Bizarre: The shape of Zambian politics towards the 2016 elections

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

Nothing can get more politically bizarre than the sudden announcement that Elias Chipimo, Miles Sampa and Eric Chanda would form an electoral alliance to defeat the incumbent Patriotic Front (PF) government. This Sampa-Chipimo-Chanda (SCC) alliance is bizarre on so many levels.

  • First, Elias Chipimo appears to be quite a level headed gentleman. But he has not had any traction at all since he formed his NAREP party a few years ago. The most damaging of his political life was when he came out with fewer votes than Eric Chanda in the 2015 presidential by-election. It is a serious indictment of Zambian politics that a reasonable aristocrat like Elias Chipimo would get such fewer votes than a little known Eric Chanda.
  • Second, the SCC alliance does not quite make sense. What is this alliance based on? Miles Sampa just launched his party last month. Before he even has had the time to introduce his party to the country, he is already getting small parties into ambiguous alliances with him. When is he going to spread the message of his orange party?
  • Third, the SCC alliance is also quite unusual in that all the three gentlemen are Bemba (or Bemba speaking). Alliances should make much more sense if they are trying to cross-pollinate some aspect of Zambian diversity. This SCC alliance falls far short of bringing any meaningful cross-pollination of our national politics. I do not therefore take the SCC alliance very seriously. It is going nowhere and adds nothing new to the national political dialogue.

Just this week though, United Party for National Development (UPND) president Hakainde Hichilema had very rave reviews of the SCC alliance. This is where I fail to understand the political reasoning of Mr. Hichilema. How can an SCC alliance be such a great thing to him? Unless of course, he has some hopes that this SCC will eventually join his UPND alliance at a later stage. In that case then, he is trying to oil the SCC alliance so that they could become useful to UPND’s battle for 50+1. On that basis it could be a smart move on his part. Hakainde Hichilema’s UPND needs to penetrate into the North-Muchinga-Luapula corridor if it is to dislodge the Patriotic Front from power, and getting the SCC alliance on board could be the first step in that direction.

President Edgar Lungu is reading the political mood very well. He seems to be quite open about it and I must commend him for that. To put it very bluntly: the Patriotic Front will lose the elections this year if their North-Muchinga-Luapula support wavers even slightly. To win the elections, the PF must do well in three areas: first, they must maintain a commanding lead in Lusaka and Copperbelt, second they must maintain the Luapula-North-Muchinga corridor and thirdly, they must get a steady inflow of votes in all the other areas of the country.

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MMD President Nevers Mumba

To achieve these three goals, the PF will need the Movement for Multiparty Democracy (MMD), particularly its president Nevers Mumba. A while ago, we wrote that the PF faces a Bemba revolt. It appears like the departure of Miles Sampa from the PF and subsequent formation of the SCC alliance would seriously challenge the PF’s domination of Bemba areas. Lungu must counter this coming assault by selecting a person like Nevers Mumba as his running mate, if the PF goes ahead with an alliance with the MMD. Nevers Mumba is not a powerhouse on his own. A running mate for President Lungu does not need to be a powerhouse. A running mate for President Lungu does not need to be an overwhelmingly popular person. President Lungu needs a running mate that will help him cover the three areas I have mentioned above.

  • First, Nevers can easily help Lungu rally the Copperbelt and Lusaka if he uses the Patriotic Front substructure, which in actual fact was stolen from the MMD infrastructure.
  • Second, Nevers would help cure Lungu’s Bemba problem. Very few would dare to admit that Lungu is facing a Bemba revolt. I must say it without hesitation: the Bembas within the PF are grumbling a lot at the moment. Nevers could help calm those grumblings. A Bemba running mate would almost certainly forestall the likely SCC invasion of a traditional PF stronghold.
  • Third, Nevers as a running mate could help garner the little infrastructure of the MMD country wide that might ensure the Lungu-Mumba ticket pick up a few MMD die hard votes across the country including the Eastern Province. The PF must particularly canvass for any votes they can get from the East. The MMD still has a good political organisation and infrastructure that Lungu could tap into.
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Elias Munshya, LLM, M.A., MBA, M.Div.

The above discussion might lead to the next important question. What should happen to Boma Inonge? I must put it very bluntly, Boma Inonge has done very well for the country. But even if she were to stand as an MP in her current constituency on the PF ticket, she would lose. The west had turned a page on the PF party, the UPND will dominate. Kaingu is also causing a lot of dust, but as a candidate on the PF ticket he will lose in the west. With a very dominant support in the south and the west, the UPND only needs a slight movement in the north to win the 2016 elections. It is that movement in the north that Lungu should worry about. But for now, there will be more alliances and rumours of alliances before the 50+1 finally gets to decide who wins on August 11, 2016.

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Munshya, E. (2016). Alliances of the Bizarre: The shape of Zambian politics towards the 2016 elections. (www.eliasmunshya.org) (February 2016).

This article was featured in the Zambia Daily Nation Newspaper in January 2016. Munshya wa Munshya column is featured every week in one of Zambia’s leading private print newspaper.

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Could we have a Lungu-Mumba candidacy?

 

 

 

When a Constitution Forgets: A theory of interpreting Zambia’s constitution

E. Munshya, LLM, MBA, M.Div.

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

Surprise, surprise. Now that we have read the new constitution we are quickly realising just how much of a blessing, and a controversy it has become. I would be surprised if a constitution did not evoke opposite emotions and everything in between. Beginning from the Grade 12 qualifications to the omission of deputy minister positions, a debate is raging about the true meaning of many articles and provisions in this amended constitution. The battle lines are drawn. Honourable Chishimba Kambwili is undertaking a tour of the country to find out what the people think about the new constitution. Kambwili wants to propose more amendments to the amended constitution after he receives the feedback from the country. Just how that actually works, nobody knows. Current deputy ministers are in some sort of a limbo. They really do not know what it means now that the 2016 constitution has no direct provision of their existence. Civil servants are equally confused. The constitution states that civil servants who want to run for political office must wait three years after they leave the public service to be eligible. His Excellency Emmanuel Mwamba, as an example, cannot run in the next elections due to this ban. Last week I offered my opinion on the Grade 12 qualification. My interpretation of the Grade 12 requirements is that it is actually just for show and practically means nothing much. In view of all these issues, how would the High Court or the Constitutional Court look at these and many other issues? Every constitution should be interpreted within the purview of a certain theory of interpretation. I present one such theory.

Common sense is the first key to constitutional interpretation. Before you go about turning pages of the constitutional text, ask your self a very basic question. Am I willing to use common sense in this task? Without common sense you can not understand, apply or let alone interpret the constitution or anything for that matter. Common sense is the first article of every constitution. It is the foundation that must undergird any constitution. Common sense is the first gift of God to humanity.

The second element is that the text of Zambian constitution must be interpreted within the ambit of general principles of constitutionalism even if they are unwritten. In common language, we refer to the letter and the spirit of the constitution. The letter is the text of the constitution itself, the spirit is a collection of years of mostly unwritten constitutional thinking that go with it. These principles are such ideas such as the separation of powers, the independence of the judiciary, and the rule of law. These should then take us to the next point.

The third element of constitutional interpretation in Zambia, is an important presumption: drafters of the written constitution cannot “intend” to insult the spirit of constitutionalism. Here is an example. Constitutionalism entails that the Republic of Zambia must subsist as a political democracy and every text in the constitution must be interpreted in ways that affirm this principle rather than undermine it. If the people of Milenge cannot have among them a Grade 12, the article in the constitution that requires Grade 12 certificates must be interpreted in ways that do not defeat the political subsistence of the Milenge District Council. The municipality must survive. If the drafters drafted into our constitution a Grade 12 requirement that is impossible of performance in Milenge, it is incumbent upon the interpreters of the constitution to cure such impossibility, by giving it creative meaning that gives effect to the bigger picture of political and democratic subsistence.

The fourth element might sound counter-intuitive in view of what I have stated above. The words and phrases in the constitution must be interpreted in their natural meaning. We must not add to the text what the text has not included. For example, we cannot impose deputy ministers into a constitution that has deliberately “forgotten” to include them. Deputy ministers are not an integral part of constitutionalism and neither can they be saved by the principles enunciated above. The 2016 constitution has ignored deputy ministers; we should take the text of the constitution as it is, in this regard. Should we then as suggested by Mr. Tuta Ngulube, go back to parliamentary debates to check for the intention of parliament? Answering this question will lead us to the next point.

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Edgar Lungu

Fifth, the intention of parliament can only be expressed in two ways:  either through the written text, or through the general unwritten principles of constitutionalism. Parliament can never intend to betray constitutionalism; however, its direct intent can only be gleaned from the text of its legislation, not by the debates. It is no use to try and justify the office of deputy minister by going to the debates of parliament during the adoption of the constitution. The text of the 2016 constitution does not provide for deputy ministers. They are not part of the constitution. They cannot be justified as a principle of constitutionalism, so they should not exist in Zambia. President Lungu should fire all deputy ministers as they are in office unconstitutionally.

These principles and many others will be critical to how the Constitutional Court of Zambia  interprets this new gift President Lungu has signed into law. Constitutional interpretation is an orgy of ideas. The principles enunciated above hope to be part of that orgy.

 

Citation: Munshya, E. (2016). When a Constitution Forgets: A theory of interpreting Zambia’s constitution. Elias Munshya Blog (wwweliasmunshya.org) (January 29, 2016)

Zambia’s Sugo Fiasco: Interpreting the constitution’s Grade 12 requirement

E. Munshya, LLB, LLM, MBA, M.Div.

In the recent constitution amendment signed by President Edgar Lungu is a provision that is both absurd and confusing. According to Article 70 (1) (d), a person is eligible to be elected as a Member of Parliament, if that person “has obtained, as a minimum academic qualification, a grade twelve certificate or its equivalent”. This provision has sent shivers and panic, no less, among the very parliamentarians that passed the constitution. Some quarters are even suggesting that candidates should produce their grade twelve certificates if they are to stand for political office. I submit that the Zambian courts will have to provide a more creative interpretation of this provision if we are to avoid the mess it has brought. However, today, I just want to dispel a few fears.

Is grade twelve the academic qualification for political office? No, the constitution is clear; a grade twelve certificate is the minimum academic qualification. So a person does not need to produce this minimum qualification if they have a superior qualification.

Can a person have a higher academic qualification if they did not complete grade twelve? Yes, in fact many of our senior judges, lawyers and senior civil servants in Zambia never completed grade twelve as they never went to secondary school. Kenneth Kaunda trained as a school teacher and yet he did not have a grade twelve education. Frederick Chiluba graduated from Warwick University with a Master of Philosophy degree and yet he never had a grade twelve education. It is possible for a person to not complete grade twelve and yet have academic qualifications that are superior to it. If Kaunda, Mainza Chona or Chiluba were to stand as MPs under the current constitution, they would not have to show a grade twelve certificate, all they would need to show are their tertiary qualifications.

How can a person have tertiary education if they do not have secondary education? This is what confuses many. In the real world, it does not take secondary education to do tertiary education. In fact, Zambian universities and colleges can admit students on mature entry status who do not possess a grade twelve education. Those graduates would still have an education that is superior to a grade twelve certificate and can qualify to stand based on Article 70 (1) (d).

Some institutions demand grade twelve even from those with superior degrees, isn’t the constitution saying the same thing? Article 70 (1) (d) does not state that a candidate must have a grade twelve education as well as other education. It simply states the minimum. It can also be noted that the Article is referring to a “certificate”, and not to an “education”. So it is not asking for a grade twelve education, but a grade twelve certificate. A grade twelve certificate can be obtained without twelve years of education and in fact, even a superior qualification can be obtained in its place. While it is true that ZIALE, as an example, demands grade twelve certificate in addition to a bachelor of laws degree in its admission requirements, this is different from what 70 (1) (d) is requiring. With due respect, you cannot interpret the constitution on the basis of discriminatory practices of bodies such as ZIALE or the Nursing Council of Zambia.

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

Can trades certificate and diplomas qualify as superior to grade twelve education? We might have to wait for a court ruling on this one, but the old myth that trades and vocational education is not academic enough has long been dispelled. Vocational training and the trades are as academic as a university education. All tertiary education in Zambia is superior to secondary education. Education in Zambia is roughly demarcated as follows: primary, secondary and tertiary education, in the level of their superiority. 70 (1) (d) makes secondary education the minimum, meaning all those with tertiary education do qualify to stand. To say that a person cannot have tertiary education unless they have secondary education is as ridiculous as suggesting that for one to have secondary education they must first have primary education. There are clear instances where a person without primary education due to circumstances beyond their control would go straight to secondary education. Trades certificates such as diplomas and certificates in plumbing, cooking, and joinery from a recognised institution of training in Zambia is academically superior to any secondary education.

There is a lot to say about the grade twelve qualification. It is absurd and if it came up before the constitutional court, it will be interpreted very liberally so as to allow more people to qualify to stand as political leaders. It is certainly absurd to demand that councillors in Milenge have a grade twelve certificate when secondary school arrived there only very recently. Let us end here for now and see how this sugo fiasco plays out.

Editorial Note: Elias Munshya holds three degrees in law and is currently undergoing the bar admission process in the jurisdiction of Alberta. Those personally affected by the issues raised in this article are encouraged to consult members of the Zambian bar for legal advice specific to their situation.

Citation: Munshya, E. (2016). Zambia’s Sugo Fiasco: Interpreting the constitution’s Grade 12 requirement. Elias Munshya Blog. (www.eliasmunshya.org).