By E. Munshya wa Munshya

It is Frank Talk time on prime time television in the early 1990s. One evening, the whole nation is listening in as journalist Frank Mutubila introduces his guest on ZNBC TV. Pastor Nevers Mumba sits confidently in his chair. Next to him is his wife. They are appearing on a program that follows and features news personalities. In the middle of the interview, smart Frank Mutubila probes Nevers about whether he would consider running for public office.

“I am a preacher”, Nevers exclaims. And continues, “any involvement in politics would be a demotion.” Those words would become the most memorable lines of that Frank Talk interview.

When Nevers is saying that politics would be demotion. It really means just that. His name had become a household name in Zambia. He was an international preacher attracting the very best of international charismatic preachers. In a Christian nation, Nevers had access to State House at any time. Among his closest friends were President Frederick Chiluba and his Vice-President Godfrey Miyanda. Nevers Mumba was for all reasons a man with a lot of influence, the influence that came as a result of his faith commitment and leadership within the charismatic Pentecostal movement. His yearly Victory conferences became pilgrimages for Zambian Pentecostals.

Nevers’ influence did not just involve the MMD regime, however. President Kenneth Kaunda counted among many admirers of Nevers. In the dwindling days of his presidency, Kenneth Kaunda, a Chinsali native had turned to Nevers, another Chinsali native for counsel. The meeting at State House that Nevers had with Kaunda occupied several pages in Nevers’ book Integrity With Fire. According to Nevers and using Pentecostal language – President Kenneth Kaunda had given his life to the Lord after meeting Nevers at State House around 1990.

After winning the 1991 elections, President Frederick Chiluba’s government policy was to recognise and respect church leaders. Ignored for a long time under the leadership of Kaunda, Chiluba was going to give more visibility to Pentecostal leaders. He lavished them with recognition and Nevers Mumba was among those Chiluba honored with Zambian diplomatic passports. The reason for this honor was simple: “Christian preachers were envoys of the Christian nation of Zambia.”

On television, The Zambia Shall be Saved program was featured weekly, and sometimes appeared twice a week. In that program, Pastor Nevers Mumba became a firebrand of what it meant for Zambia to be a Christian nation. He would preach about faith, about prosperity, about international exposure. He would also preach about black consciousness. In those programs Nevers would testify about his wealth, his vision and the plans for his church and consequently for Zambia. Things were going well it seems. Zambia was going to be saved, and indeed it was getting saved.

Nevers was an alumnus of Hillcrest Technical School in Livingstone. After completing high school he interned for a few months in the Zambia Consolidated Copper Mines. But this was not going to last long. He was to meet Evangelist Reinhard Bonkke in the early 1980s. When Bonkke met Nevers it was like at first sight. Nevers was going to be Bonkke’s Bemba interpreter and before long a scholarship had been arranged for him to study in the USA.

Upon return from the USA around 1983, Nevers registered a ministry under the Companies Act. In those days, Kenneth Kaunda had banned registration of new religious movements. The only recourse for beginners like Nevers was to use the Companies Act. Victory Ministries Inc. was born and with it came the influence, the splendor and the pomp. The poor boy from Chinsali had finally broken into the big league. For Nevers, what Kaunda had said about Zambia being free in 1962, he was going to tweak it and call rebrand it as “Zambia shall be saved.” This was going to be his mantra for life.

That splendor characterized Nevers’ life is an understatement. Ministry supporters of his had given him a mansion in Riverside, Kitwe. Victory Ministries was a staple all over the country. Crusades were held across the nation. Nevers Mumba was that embodiment of those rich American preachers. If any one could say there is money in Christian ministry, Nevers had broken that ceiling. He was swimming in money, in power and in influence. Given that influence, it is true; becoming a politician would truly be a demotion.

And then something happened.

It was in 1997, in Kabwe. Nevers had somewhat a change of heart or mind. We may never know. Or may be he had another born again experience. He announced that he had formed an organization to push for political reforms in Zambia. The National Christian Coalition was going to take on President Chiluba’s government.

When Nevers is making the decision to challenge Chiluba in this manner. He knew that this move would come at great personal and ministry risk. Indeed, if Nevers had cared about his own welfare he knew that challenging the Chiluba government would be a risky move. And it is this move that many analysts of Nevers never pay attention to. By breaking with the Chiluba government, Nevers had demonstrated tremendous courage. He knew he was going to lose all the honor, splendor and respect the Chiluba government had accorded him. In fact, he knew that the words he had spoken to Frank Mutubila earlier would come back to bite him.

But for Nevers, the nation was at stake. Chiluba had become corrupt. The promise of a Christian nation was not leading to a more moral nation. In that context, Nevers felt he could do something about it. He risked it all. And indeed the response from those in power was swift fierce.

After the NCC announcement, Vice-President Miyanda went to ZNBC. He berated Nevers Mumba. The war of words had now become the war between two of the countries’ foremost Pentecostal firebrands: Nevers in one corner and General Miyanda in another. Clearly, Nevers had fallen out of the league. With those words from General Miyanda, Nevers’ world started to shrink. And it shrunk faster than Nevers had expected. The sacrifice he had envisioned for his people was going to demand more than he could handle. If he had been tested and tried many times while preaching, the new political frontier was a temptation on steroids.

Nevers’ fellow preachers were next to call him out. He was a traitor, some of them screamed. He was challenging his fellow brother in Christ, some exclaimed. Some of his detractors accused him of leaving the “calling”, a treasonous crime within the Pentecostal fraternity. The words he had used to Frank Mutubila were replayed over and over again. Some even suggested that he was selfish just wanting to get into politics for more power, splendor and influence. Any one who has watched Nevers knows that he has far given more to politics than he had taken out. And if there was any doubt about that – challenging Chiluba’s corruption was the first step.

Chiluba’s machinery continued to respond swiftly. The NCC’s status as a society was threatened. Nevers had to quickly transform it into a political party and rename it the National Citizens Coalition. Chiluba summoned the Zambia Revenue Authority to audit the Victory Ministries Inc., which had for all these years operated as a non-profit company. Nevers was going to pay back back-taxes in millions of Kwachas. All the privileges Nevers had were to be withdrawn. The diplomatic passport was withdrawn too. Nevers might have bargained for too much. And he had bitten a bigger chunk he could not swallow.

But when he started speaking about his journey towards politics, Nevers was loved by the opposition and by civil society. As a close preacher to Chiluba he had noticed the abuse and corruption going on with Chiluba. Nevers had noticed how the government was working against the Zambians instead of working for the Zambians. Chiluba’s closest confidante, Michael Sata, was also on hand to berate the “disgraced preacher”. It was Nevers against Chiluba, Miyanda and Sata. It was Nevers against the machines of power and the testing and trails were only going to get fiercer.

That mansion in Kitwe was going to be subject of litigation. Victory Ministries faced closure. The Zambia Shall be Saved program on TV was only saved by court intervention. The temptation of Nevers Mumba had only started to intensify.

Pentecostal political theology is still in its infancy as an academic subject. Many observers of Pentecostal political theology especially in Africa do characterize it as one that attempts to maintain the status quo. At best, most analysts see Pentecostals as perpetrators of the status quo. As such, Nevers Mumba’s decision to challenge the status quo was a bit unusual and a departure from what is expected of a Pentecostal preacher. In this regard then, Nevers becomes an embodiment of that spirit of resistance against corruption and abuse of power. After noticing that Zambia was going the wrong direction, Nevers bucked his own Pentecostal movement to challenge the excesses of his brother in Christ, Frederick Chiluba. This Nevers did at great cost to his own life and in fact, to his own integrity.

Pentecostalism is for many reasons predicated on an understanding of God who can do anything. As a faith that lacks a central authority, it is by nature quite chaotic and dynamic. In Pentecostalism God speaks directly, but more than that, God continues to speak daily to his people. As such, when Nevers says he could not join politics that is what God could have told him in 1992, but by progressive revelation may be God told Nevers something else by 1997. He had to abandon the church in order to challenge the corruption he saw in the Chiluba government.

This contrasts Nevers and President Michael Sata. Both of them were close to the Chiluba axis of power. But when he noticed corruption, Nevers broke with Chiluba at great personal and family cost. Sata on the other hand stayed with Chiluba in the middle of the worst corruption Zambia has ever seen. In fact, Michael Sata only left Chiluba after it was apparent that Chiluba had dribbled him on succession. Nevers’ decision to leave Chiluba’s MMD was a decision for others, for Zambia. Sata’s decision to leave, however, was based on personal ambition – the desire to be President and only leave corruption when he gets disappointed from being adopted as MMD candidate.

By the time Nevers was campaigning to be president of Zambia for the 2001 elections, he had been reduced to a pauper. The levers of power had worked their way into Nevers’ life. He had lost everything. The only thing he was left with was that Pentecostal confidence in the God who can “do anything.” Nevers had lost his house, his reputation stained, and his friends had run away from him. He had not committed any crimes, or may be the only crime was to cry out against the shoes, the designers Bombasa, and theft he saw in the Chiluba administration. And for doing that, he suffered for it. Politics for Nevers had been a demotion, but a demotion he fully believed was for the good of the nation.

By the end of the 1990s, Nevers’ children had just become teenagers. They needed a father who would provide for them. Having lost the income, the influence, the power, Nevers had paid a huge price for politics. His passion for the ordinary Zambia led him to make these sacrifices. He had some solace in a few friends outside of Zambia who would invite him to preach. Having lost the Kitwe home – Nevers had become a destitute. Politics and a passion for his people and his nation had not made him richer but poorer. And daily, he had to agonize about what happens to his children, and to his family. The days of splendor and glory are over. With a simple stroke of a microphone he could have returned to preaching full time. And as usual, there was going to be more people to welcome back the prodigal preacher.

The temptation of Nevers was too great to bear. The man who could advice presidents was now living in a guest wing at his in-laws. Cruel life. But for a good cause. The cause of his nation.

And then the call came.

Nevers Mumba’s one of his eleven challengers in the 2001 elections had now been president for almost a year. Levy Mwanawasa had been handpicked by President Frederick Chiluba to succeed him. When Levy won the elections, he adopted the fight against corruption as the motto of his presidency. Levy Mwanawasa started proceedings to have Chiluba prosecuted for corruption and theft. Nevers Mumba’s fight against Chiluba’s corruption had now been confirmed that Chiluba was no longer in power. President Chiluba, a man of the people had by the end of his second term faced serious accusation of theft and corruption.

When Mwanawasa made the moves to prosecute Chiluba, Nevers Mumba was among the first to support the decision. The Post Newspapers carried Nevers Mumba’s reaction to President Mwanawasa’s efforts. “It was an answer to God’s justice”, Pastor Nevers Mumba had said. May be, as he is saying this, he has in mind the injustice he had suffered at the hand of President Frederick Chiluba. For now, it was just early 2002 and President Mwanawasa had noticed, a Chinsali born Bemba, and former preacher who shared his ideals against corruption.

Levy Mwanawasa’s crack at the presidency proved difficult. Chiluba’s influence within the levers of power was so endemic. If he had to prosecute Chiluba, Mwanawasa needed partners. But partners within the MMD government proved difficult to keep. And so he had to look elsewhere.

Within the MMD, almost all of the senior leaders had been soiled by the Chiluba corruption. Vice-President Kavindele himself had won the MMD vice-presidency under very controversial circumstances at the 2001 convention. By 2003, the Bemba speaking faction in the MMD had been dissatisfied with Mwanawasa. President Mwanawasa was going to find a perfect fit to help him win the Bemba hearts and to fortify his fight against corruption.

It was early 2003. In an evening broadcast, President Mwanawasa had made a choice of a new Vice-President. Nevers Sekwila Mumba from the living room of his in-laws went through the formalities of appointment. He had become Zambia’s Vice-President. Becoming the first preacher to become Vice-President and the second Chinsalian to become Vice-President after Simon Mwansa Kapwepwe in 1967.

President Mwanawasa had found a partner in the fight. President Mwanawasa had also found a well-spoken preacher to help him deal with the public relations issues facing his government. Nevers was swift, flamboyant and hard working. His personality made him likeable. The image of a clean, handsome man coming into office enthralled many.

But this honeymoon was never to last long.

In 2004, Nevers’ crack at executive privilege had been curtailed. President Mwanawasa had fired him. And with his firing – Nevers’ trials and temptations continued.

By E. Munshya wa Munshya

In 2008, as President Levy Patrick Mwanawasa was reflecting on his legacy, one issue he had to confront was whether he had any regrets in choosing Nevers Mumba for his Vice-President from 2003 to 2004. According to Malupenga (2010), President Mwanawasa hoped that in future Zambians will come to the same conclusion he had come to in 2003 – that choosing Nevers Mumba as Vice-Present was a great choice.

To put Mwanawasa’s sentiments in perspective it is important to begin from where it all started. When Mwanawasa assumed power, he came to a country that was deeply divided. For the first time in history, Zambia had eleven presidential candidates in the election that brought in Mwanawasa. The margin of victory for Mwanawasa was a paltry 28%, just a point ahead of his closest rival UPND’s Anderson Mazoka. The EU Observers condemned the 2001 elections as having not been free and fair. On the other hand, an active civil society and The Post newspapers had been pushing the agenda that Mwanawasa’s predecessor, Frederick Chiluba had stolen public funds and should be prosecuted for it.

Within the ruling party, the MMD, there were apparent fractures. President Frederick Chiluba, even after he had relinquished the republican presidency, still maintained a grip on the ruling MMD party. Early 2002 was a difficult time for the country and Mwanawasa needed to act fast to show that he was in charge.

Most of the leaders within the MMD were still loyal to President Frederick Chiluba. Vice-President Kavindele, Foreign Affairs Minister Katele Kalumba and many others still held Chiluba in high esteem. To respond to this, Mwanawasa fired some of Chiluba loyalists including Katele Kalumba and Lupando Mwape. Mwanawasa had to find his own niche.

In this context then, the most attractive of all the candidates he had considered to replace Vice-President Enoch Kavindele was Nevers Mumba. Nevers had been attractive to Mwanawasa for several reasons. First, he had long campaigned against Chiluba’s corruption. Starting from the 1997 formation of the NCC it had been a political aim of Nevers’ to bring to light the misdeeds of the Chiluba administration. Faced with possibilities of a prolonged fight against corruption, Mwanawasa needed a good partner for a Veep whom he could rely on in tough times.

Secondly, Nevers was attractive to Mwanawasa because he was considered an outsider. Lacking any genuine political base, Levy had somehow believed that Nevers would be personally loyal to him. Actually, Zambian presidents do have the habit of choosing politically unpopular candidates as their vice-presidents. Any vice-president that proved politically popular or astute has never lasted in that position beginning with Kapwepwe and ending with Mwanawasa. As an outsider with no political clout, Nevers Mumba would be a good candidate for Vice-President.

Thirdly, Nevers was attractive due to his tribe. When Mwanawasa came into power it was not long before the Bemba political aristocracy got concerned at his lack of regard for the Bemba hegemony. The firebrand of a Bemba aristocracy, Michael Sata was now in opposition and he never hesitated to drive home the point that Mwanawasa’s leadership was heavily nepotic and was patently anti-Bemba. When Levy started to prosecute Chiluba and his close associates, Sata even accused Mwanawasa of unfairly targeting Bemba-speaking politicians. Mwanawasa’s response to this criticism did not help matters. In Ndola in 2003 when he was asked to respond to the anti-Bemba criticism Mwanawasa is reported to have said that he made no tribal exception to the fight against corruption because “corruption stinks.” These remarks became folder for opposition leader Sata.

“Mwanawasa”, Sata claimed, “had insulted the Bembas.”

In a flurry of arrests and detentions, not even Sata was spared from Mwanawasa’s anti-corruption fury. Sata got arrested for theft of a motor vehicle in 2002. As this is going on – president Chiluba, now facing corruption charges, had abandoned his MMD membership to become a member of Michael Sata’s Patriotic Front. Sensing a tribal revolt, Mwanawasa needed a Bemba vice-president to show that he indeed was not as nepotic as his critics were suggesting. That Bemba vice-president was going to be Nevers Mumba a native of Chinsali.

At the time Nevers was assuming the Vice-Presidency in 2003, He was basically destitute. He statutorily declared a house in Texas to be his only meaningful asset. He owed a mortgage of thousands of dollars on that house. The only other asset was Chishimba Farm in Chinsali. Among other sources of income, Nevers had declared was “honoraria he receives when he speaks in conventions overseas.”

How Nevers got himself to this destitute situation has been explained in a previous article. Suffice to mention here that when Nevers entered politics in 1997, he had lost everything by 2001. Chiluba squeezed any value out of Nevers. He had lost his house, his friends, and some closest to him even suggested he was about to lose his family. The price Nevers had paid for politics was just too high. It is this kind of personal sacrifice that should make critics of Nevers Mumba to reflect and realize that Nevers was not into politics for the money. He had invested far too much than he had earned back by the time he was being appointed vice-president. It should not be hard to notice the dedication to the nation Nevers exhibited, even at the price of personal sacrifice.

If anyone did not believe in miracles, they had to. Nevers Mumba, a boy from Chinsali, and a preacher who had abandoned the pulpit and lost everything, was now going to be the second most powerful person in the country. As vice-president he had clear chances of assuming the presidency one day. Im keeping with his motto, Zambia was going to be saved and what had been a remote possibility was now within reach.

In appointing Nevers Mumba – President Mwanawasa was very optimistic. “I have appointed you”, Mwanawasa told Nevers, “because you and me share a common dream for a corrupt free Zambia.” If there were any doubts about the other reasons why Nevers had been appointed – his itinerary in his first 90 days would show. Nevers travelled to meet the Bemba chiefs and addressed their misgivings about the insults that had been attributed to President Mwanawasa. With Nevers as vice-president, Mwanawasa had a Bemba confidante who could buttress any tribal accusations against government. A preacher with a likeable and handsome personality meant that Nevers was going to be the public face of President Mwanawasa’s government. And indeed it took only a few months for Nevers’ star to rise and for President Mwanawasa to realize that the Nevers he had appointed was actually far more ambitious than he had initially thought.

Those close to Mwanawasa would whisper to him about the ambitions of Nevers Mumba. To resolve these difficulties, Finance Minister Ng’andu Magande and Home Affairs Minister Ronnie Shikapwashya would be Mwanawasa’s kitchen cabinet while Nevers was left enough rope to politically hang. Nevers’ inexperience was proving a liability to him. He became politically reckless in amassing lots of political support from the grassroots MMD branches at the expense of his aloof boss. As a likeable person, it was far much easier for ordinary MMD members across the country to meet Nevers than it was for them to meet President Mwanawasa. Perhaps the greatest asset Nevers had from his background as a preacher was his way with people. The star of Nevers had started to rise and the MMD was now perfectly in his control. With a president Mwanawasa that is struggling with health issues – it is Nevers who became the defacto leader of the MMD.

But not for long, for that rope had now drawn close to suffocate Nevers politically. And the crowd was gathering to watch him hit the ground.

It was around September 2004. Nevers had been vice-president for about 15 months. The main opposition party that was threatening the MMD was Michael Sata’s Patriotic Front. Using the levers of power that had remained intact within government and on the grassroots – the PF was growing in popularity by the day. The prosecution of President Chiluba had gathered steam. President Sata saw Chiluba’s prosecution as a general strategy by Mwanawasa to weaken the Bemba-speaking political aristocracy. Indeed, MMD structures in Luapula and Northern Province had started to crumble. Frederick Chiluba had made his political opinions clear – he was in support of Michael Sata, the man he had dribbled in 2001. Patriotic Front cadres would provide escorts to Chiluba each time he appeared in court. At one time after returning from a South African hospital, Chiluba greeted the gathered PF cadres with the “Donchi Kubeba” salute.

MMD branches in Ndola had organized a “Meet the Vice-President Dinner” to raise funds for the party. That September, Mwanawasa had travelled to New York for a UN summit. At home it was Nevers in charge. Mr. Mukutulu Sinyani, the director of the Drug Enforcement Commission had gathered some information that Katanga businessman Moise Katumbi was channeling money through the Congolese border to fund political activities of an opposition party. It did not take rocket science to know that it was President Chiluba, Michael Sata and the Patriotic Front who were the beneficiaries of these monies. That evening, Sinyani briefed the acting president about that information. More than anything else, what Nevers did with this information spelt immediate political doom for him. It set off events that would eventually lead to his dismissal.

Zambia shares thousands of kilometer borders with the Congo DR. It is a porous border to say the least. You can smuggle nearly anything along this long border. From the time Zambia got its independence juggling security for the nation in view of Congolese instability has been a delicate balancing act for any president. The reports Nevers got that evening from Sinyani are by no means isolated. Each president has had to deal with security issues arising from the Congo DR. As such, any issue that comes from Congo DR deserves wisdom and diplomacy to resolve. This is the wisdom and diplomacy Nevers had lacked that September.

At the MMD dinner dance held at Savoy Hotel, acting President Nevers Mumba made some usual political statements aimed at the opposition and then he added:

“Government has information that a particular opposition party is receiving dollars through the Congolese border.”

This statement started a flurry of events so fierce that Nevers could not control them. As Nevers finished speaking to the MMD, it was morning in New York, and President Mwanawasa was about to meet President Joseph Kabila to discuss issues of mutual importance. President Mwanawasa was supposed to meet Kabila at 13:00 Eastern Time.

In Zambia that evening, Congolese Ambassador Dikanga Kazadi reacts swiftly to Nevers Mumba’s accusations. Kazadi’s message is channeled to President Kabila in New York. The Zambian government is accusing the Congo DR of meddling in its internal affairs. Mwanawasa gets the information too that morning. This was going to create a diplomatic standoff.

“The Congo DR having itself been a victim of foreign military interference cannot interfere in Zambia’s internal affairs,” screamed Ambassador Kazadi.

Nevers’ words had exposed his lack of diplomatic skills. His recklessness towards the Congo was going to be his downfall.

In New York, President Mwanawasa gathers his team and comes up with a strategy. An apology to President Kabila would be in order and the two presidents should continue to commit themselves to dialogue on issues of mutual importance. Mwanawasa had redeemed the recklessness of his vice-president. Nevertheless, back home in Zambia, security services are on high alert and Ambassador Kazadi found an opportunity to speak even more. Those baying for Nevers’ blood within government had something to work on. With this weakness they could make Mwanawasa fire Nevers Mumba – but the problem was that Nevers had done a good grassroots organization. The MMD grassroots was firmly in his charge.

While Mwanawasa is still in New York, Vice-President Mumba does something unusual. He summons the press and cabinet to his Government House. On the agenda are the preparations for the 40^th Independence Anniversary. Those close to the workings of government notice how unusual it is that a Veep should address the nation when the president is away. Nevers was not going to takeover the government, he was simply announcing preparations for the independence celebration. Mwanawasa while away is informed of this, and his inner circle wonder why Nevers had gone this far.

In Nevers’ mind, government should continue to function even in the absence of the president. As such, since he is part of the government he saw no reason why he could not brief the nation about independence celebrations that would be held in a few weeks time. Except that, Nevers was not going to be part of that celebration. Not as vice-president anyway, because by then he would be fired.

The same month of September – a few days’ latter Mwanawasa returns back to Zambia. At Kenneth Kaunda International Airport, Nevers Mumba is on hand to receive President Mwanawasa. Nevers is looking flamboyant wearing dark eyeglasses.

Mwanawasa’s first words off that plane were to address the litany of diplomatic missteps his Vice-Presidents had made. The words of the vice-president were regrettable, Mwanawasa said. He also mentioned that he had to personally apologize to President Kabila over that misunderstanding. With dark shaded glasses Vice-President Mumba looks down as he listens to the president berate him. A few minutes latter he sees off President Mwanawasa and returns to his Mercedes Benz car waiting for him.

Nevers had been leader of the Christian movement in Zambia. He was the boss for a long time. He was the one to berate his juniors. But as vice-president, he had a very temperamental boss in Mwanawasa. And protocol demanded that he had to defer to his principal. But on that day, a journalist asked Nevers about his reaction towards President Mwanawasa’s sentiments. Whether Mumba had misunderstood the question or not, we may never know. This is how he answered it nevertheless.

“I am not embarrassed by this, the only embarrassment might have been for the other side.”

The “other side” here might only mean the parliamentary opposition of the Patriotic Front.

The next day, this answer made headline news in the Post Newspaper. Realizing that he had been misunderstood and probably misquoted in the report, Nevers wrote his boss apologizing for the misconception. But it was too late.

Mwanawasa had already found an unassuming Augustine Festus Lupando Mwape Katoloshi to be Nevers’ replacement. Lupando Mwape had been fired as a cabinet minister a few months into the Mwanawasa presidency. He was one of those Bemba leaders Mwanawasa thought had maintained allegiance to President Chiluba. This time that he was appointing Lupando Mwape as vice-president he had just reinstated him to a junior position of Provincial Minister.

And yes! Mwanawasa had done another miracle. He had gone for another political non-entity to be vice-president. The reign of Nevers Mumba as Zambia’s vice-president had come to an end.

But the temptation of Nevers Sekwila Mumba continued. Discussions of the next segments in Nevers’ life deserve another analysis.

By Elias Munshya wa Munshya

Dr. Nevers Sekwila Mumba believes that political parties are not the centre of the political process, people are. As such, he sees nothing wrong with changing parties, starting new ones, disbanding others and going back to the parties that disowned him. Political parties for Nevers are tools that a person can use to aspire for leadership. As such, loyalty to a political party comes second on Nevers Sekwila Mumba’s radar. The adage that there are no permanent enemies in politics except for permanent interests, comes even truer in the political life of Nevers Mumba after he was fired as Vice-President of Zambia.

In the previous article, I had mentioned how that after President Mwanawasa’s return from New York in September 2004, it took only 24 hours for Vice-President Nevers Mumba to be fired. The firing itself came as a shock to Nevers Mumba. What is even worse is that President Mwanawasa felt so aggrieved at Nevers that he even paraded Nevers’ letter of apology that he had written in connection with the reports The Post had carried about the airport event the day earlier. Most interestingly, President Mwanawasa even mentioned that he had regretted appointing Nevers as Vice-President.

After he was fired, a brood of the Mwanawasa camp within government and party was excited that Nevers had been fired. The perceived threat that Nevers presented to all those that were aspiring to succeed Mwanawasa had now been taken of. In the opinion of some, the MMD would now move on and keep the Nevers Mumba factor behind them. Not so fast though, the Nevers Mumba factor was alive and well and in the next few months he was to strike back and strike back real hard.

After the September firing, Nevers left government house, his official residence within days. Typically, a former vice-president is expected to stay in the official residence for a few weeks to allow for him to look for decent accommodation elsewhere. He left the country for the USA and a few other countries to perhaps recuperate. After this firing, he mentioned of how he tried the sport of golf and also found solace in taking a few courses at Regent University in Virginia. He had earlier enrolled there in a Master of Public Policy program.

Upon return to Zambia, a few months latter, Nevers discovered that the support he had garnered within the MMD branches across the country was quite unshaken. In fact, even within the MMD NEC itself, it seemed Nevers had some sizeable support. In a party that had grown to dislike Mwanawasa’s hardline style of leadership, most within the MMD party had taken Mumba to be a safe alternative.

The MMD was about to go to the convention that year. Now that it was just November, the arrangements for the convention were delayed until the next year 2005. MMD members who had seen Nevers as an alternative to Mwanawasa had to move quickly to assure Nevers of their support. Even MMD stalwarts like Sikota Wina and his wife were reported to be among those supporting Nevers Mumba to take over as MMD president.

As Nevers’ presidential candidature was gaining momentum, he enlisted the support of President Frederick Chiluba. Nevers knew that openly accepting Chiluba’s endorsement would be a political gaffe. And so he had to be very careful. Chiluba on his part had made it clear that he would support anyone who wishes to challenge Mwanawasa. When asked about this endorsement, Nevers Mumba’s answer was clever and yet subtle:

“I have heard that President Chiluba has endorsed me for MMD president, there is very little I can do about that since I cannot go into his mind and change it.”

Implicitly then, Nevers had accepted Chiluba’s endorsement. And if Nevers had considered Chiluba to be a thief – now that he was running for president of the MMD he could do with as much support as he could get. It did not matter that when in government Nevers did push for Chiluba’s prosecution. An enemy had become a friend – politics par excellence.

And then came the announcement. Nevers was featured on Anthony Mukwita’s Let the People Talk. It is from there that he announced that he was going to run for MMD president and challenge President Levy Mwanawasa at the upcoming MMD convention. Mwanawasa on the other hand gathered enough intelligence both within the party and indeed the nation to know that Nevers was going to be a viable candidate against him. He was told there is a revolt in the MMD branches and Nevers had real support.

With these reports, Mwanawasa had to move very fast. The only way out was to change the MMD’s electoral college. To help Mwanawasa do this was going to be the newly installed MMD Secretary Vernon Mwaanga. It only took weeks for Vernon to announce that the NEC had changed the electoral college of the upcoming MMD convention. It is the NEC that was going to choose delegates to the convention and not district or branch organs. The provincial MMD branches were also stripped of this power. Additionally, Vernon announced that the MMD was going to commence disciplinary action against Nevers Mumba. Among the charges Nevers was facing are gross indiscipline and disloyalty to the party.

The dissatisfaction that the MMD members and branches had against Mwanawasa was so deep rooted that even after changing the Electoral College, most of Mwanawasa’s preferred candidates did not win at the convention in 2005. Most notably, Vernon Mwaanga lost the position of National Secretary from an electoral college, which he himself had handpicked. But we will come back to that later.

After weeks of wrangling, the NEC finally decided. Nevers had been expelled effectively ending his ambition to be president of the MMD. Vernon Mwaanga had also ensured that the electoral college was cleansed of all the supporters of Nevers Mumba. One by one, so called MMD branch officials would appear on national television renouncing Nevers and emphasizing in no flattering language that the disgraced former priest would not come near to tasting the republican presidency.

Politics change and change very quickly. It is one thing to have support within the MMD and quite another to transform that support into a new political party. Even if Nevers was quite outstanding when compared to Mwanawasa he was no Michael Sata. Starting a new political party was going to perhaps be the most controversial decisions of Nevers’ political career.

Enlisting the services of a shadowy figure known as John Ziba, Nevers Mumba established and registered a new political party to be known as the Reform Party. With an emblem of a charging bull, the party symbol was going to show everything that Nevers stood for – tenacity, strength and power. The Reform Party had for its slogan, a phrase taken from the national anthem – strong and free. This party was not going to last long. Nevers did not manage to garner any significant support for it, and before long, the Reform Party remained a party on paper.

Perhaps, Nevers’ decision to start his own party after his expulsion from the MMD might have been motivated by the desire to emulate Michael Sata’s decision to start his Patriotic Front years earlier. However, like I mentioned above – Nevers was no Michael Sata. What Sata represented in the minds of Zambians was far much more real than what Nevers did. And so if Nevers had thought that his new party was going to succeed he was in for a rude shock. The Reform Party made no real inroads into the political scene.

After Nevers was expelled, the Bemba-speaking section within the MMD had lost their political symbol and with it they had lost their influence. This group now wanted to get back its lost power. Mwanawasa knew of this influence and in fact it had been one reason why he had earlier appointed Nevers in the first place – to appease them. For Mwanawasa to keep the Bembas happy within the MMD he appointed another Bemba from Kasama – Lupando Mwape to be Nevers’ replacement. But the Bemba group was still was unsatisfied. Lupando Mwape was not a safe bet.

Meanwhile, as the MMD is recovering from Nevers’ expulsion, a group of six Bemba candidates were lining up and campaigning for the position of party vice-president. Austin Chewe, Lupando Mwape, and Bwalya Chiti were among the leading contenders. Knowing the consequence of such a bloodbath, Mwanawasa came up with a solution, suspend all campaigns for the party vice-presidency but keep Mwape as republican vice-president. But that decision was going to be a costly one for the party.

At the convention, the Bemba group resurfaced again. The same group that was unsatisfied with the expulsion of Nevers Mumba regrouped and the influence was deafening. They influenced the MMD convention to vote for Bemba-speaking Katele Kalumba as MMD National Secretary. This shocked Mwanawasa. But at least it made him realize that in politics friends could be enemies and enemies could turn out to be friends. Katele Kalumba is one of those individuals being prosecuted for corruption and theft by the Mwanawasa government.

This MMD convention and the way it voted in Katele Kalumba made Nevers Mumba to exclaim that Mwanawasa had betrayed the fight against corruption.

To bolster his chances in politics, Nevers knew that the Reform Party was headed nowhere. As such, he sought an opposition alliance with Michael Sata’s Patriotic Front for the 2006 elections. The terms were that Nevers was going to support Sata while he is given the opportunity to stand on PF ticket for parliament. A few weeks before the 2006 elections Nevers Mumba travelled to Chinsali with a certificate of adoption from PF Secretary General Guy Scott.

There was a small problem, however. PF Secretary General Guy Scott had issued a similar certificate of adoption to another candidate Mulenga. Mulenga coincidentally is nephew to Nevers Mumba. He had campaigned hard in Chinsali and had bolstered his popularity in Chinsali. In the battle of the 2 adoption certificates, it was Mulenga’s that won. A family meeting in Chinsali had persuaded the uncle to defer to the nephew and drop out of the race for Chinsali.

Nevers had failed.

The 2006 elections came and Nevers never again appeared with Michael Sata. He never openly campaigned for him. His Reform Party was not prepared enough to even field a single candidate. It seemed like dejavu for Nevers.

In the 2006 election, Mwanawasa finally prevailed. But the MMD’s popularity was further eroded. After having lost popularity in urban areas, the MMD had now lost to the Patriotic Front in both Luapula and Northern Provinces. The Bemba-speaking areas of Zambia had disowned Mwanawasa and the MMD. In fact, even Mwanawasa’s vice-president Lupando Mwape lost to a little known lawyer in a contest for a seat in Kasama.

With the Reform Party now basically extinct Nevers started making gestures to Mwanawasa for an appointment into the diplomatic service. His efforts at going to Canada kept being rebuffed by Mwanawasa and his loyalists. There was no room for Nevers Mumba. His sin had been too much. And his temptations were unforgivable.

Two years after the 2006 elections, President Levy Mwanawasa died. Fresh elections were to be called within 90 days of the burial. The MMD found its candidate in the republic vice-president Rupiah Banda. Knowing that the MMD was basically non-existent in the Bemba-speaking regions of Luapula and Northern Provinces, candidate Rupiah Banda turned to both President Chiluba and to Nevers Mumba. The 2009 presidential by-election would pit Michael Sata against Rupiah Banda. Sata’s friend Frederick Chiluba was no longer supporting the PF. He had changed back to the MMD because Rupiah Banda was more hospitable to him than Mwanawasa had been.

In countless campaign stops, Nevers appeared with Rupiah Banda in Mansa, Chinsali and several others places. Campaigning for Rupiah Banda meant almost instantaneously that Nevers was still going to be game.

After Rupiah Banda won the elections – Nevers’ dream of going to Canada as High Commissioner would come true. The turbulent priest, turbulent vice-president and controversial politician was now on his way to Ottawa to become the country’s ambassador. Upon hitting the ground in Ottawa, Nevers became a hit. He learnt the art of diplomacy quickly and got loved almost instantaneously by his diplomatic colleagues. In 2010 he was appointed dean of the diplomatic corps of Canada. Apart from Canada he was also ambassador to several Caribbean nations such as Bermuda, Jamaica and The Bahamas.

Within the business community, Nevers connected very well. Barrick Gold had just come to Zambia and were making huge investments into Lumwana. President Banda was happy to have Nevers in Ottawa. Since Nevers’ ambition knew no boundaries, Rupiah Banda did well to keep Nevers as far as possible. But even from the far flung areas of Canada, there were still whispers in the corridors of power, that Nevers’ political ambition had not ended. His time in Ottawa was going to be but a preparation time for something bigger.

What else could be bigger than being Ambassador or being vice-president?

Nevers’ sights for State House were never altered. Being Ambassadors was just one of those steps to take to help him reach the goal. However, MMD members and indeed many MMD insiders were still watching Nevers from afar and given the right circumstances they could give him another chance.

And that chance came in 2012. It came very fast and shockingly brutal.

In the 2011 elections, Rupiah Banda had lost the election to Michael Sata. Ambassador Nevers Mumba in Ottawa got the shocking news and knew there will be changes soon in Ottawa. Hours after Sata was sworn in, Nevers sent his congratulations but knew that his time as Ambassador had come to an end. He started gathering his goods and putting his house in order. Zambia had called. Foreign Affairs Minister Chishimba Kabwili recalled Nevers Mumba with immediate effect. To this recall, Nevers responded:

“I will come back to Zambia after the 3 months expires in accordance with my contract.”

This three months would give Nevers the necessary time to bid farewell to the contacts he had gathered in Ottawa. It would also give him the time to reflect on his next move. The opinion within the MMD NEC had been quite categorical – they needed him back to head the MMD.

Rupiah Banda tried to hold on to the MMD presidency for a few more months. But in December 2011 – he resigned as MMD president giving chance to the MMD NEC to find a new president.

In a convention, the MMD electoral college comprising branch, district, provincial and national delegates cast their votes. The first ballot had no convincing winner. It was the second ballot that assured Nevers Mumba of victory.

That morning, Nevers Mumba had been elected president of the Movement for Multiparty Democracy.

President Michael Sata was not too happy with this outcome. From State House, President Sata castigated Nevers Mumba as a bogus and fake pastor who had stolen money in Canada and could not be trusted for leadership.

“Nevers Mumba”, President Sata said, “abandoned his flock to join politics.” These words left no doubt that Nevers Mumba was going to face more temptations and trials under the leadership of President Sata.

By E. Munshya wa Munshya

On Friday, 15 March 2013, the Zambian parliament debated a motion that sought to remove the presidential immunity enjoyed by former president of Zambia, Dr. Rupiah Banda. The motion passed by 80 votes, with most of the opposition members of parliament staying away from the proceedings.

A day earlier, on Thursday, lawyers of the former president had successfully obtained an injunction from the High Court which sought to stop parliament from proceeding with the motion of removing Rupiah Banda’s immunity until the case had been disposed of in the courts of law. When the matter came up in parliament, Speaker Matibini ruled that he could not follow the injunction because it was irregularly issued. Among reasons given by Speaker Matibini is that “parliament enjoys protection of its internal processes, and these processes cannot be subjected to judicial interference.” I will argue in this article that Speaker Matibini’s position is sound at law.

Separation of powers is the cornerstone of the Zambian democracy. In its simplest form, government power is divided between three branches of government namely, the executive, the legislature and the judiciary. All the three arms of government derive their power from the constitution. Article 1(4) states that “this Constitution shall bind all persons in the Republic of Zambia and all Legislative, Executive and Judicial organs of the State at all levels.” As such, the three arms are not only creatures of the constitution but they are also supposed to all be bound by it. In its basic form, the principle of the separation of powers states that the executive implements executive power and laws, the legislature makes laws and the judiciary arbitrates and interprets the law. Specifically, Article 78(1) states the following about the powers of parliament:

78 (1) Subject to the provisions of this Constitution, the legislative power of Parliament shall be exercised by Bills passed by the National Assembly and assented to by the President.

For the legislature to make laws freely, it should enjoy certain privileges and immunities derived from both the constitution and the common law (Such as Article 87 of the Zambian Constitution). Among these immunities and privileges are that the members of parliament should be able to debate freely without fear of repercussions from outside parliament. It is this fundamental doctrine that grants immunity to debates carried out by members of parliament while in the House. Additionally, parliament in its law making functions, works like a legal entity on its own, with internal disciplinary procedures. For example, no police can access National Assembly grounds without consent from the Speaker. In fact, even if there is a crime committed on parliament grounds, police investigators can only access parliament on invitation from the Speaker.

Another important aspect of parliamentary power is that it has its own internal procedures that cannot be interfered with by a court of law (Article 86 of the Zambian Constitution). For example, parliament has its own rules with regard to how it disciplines its members and how it deals with the law making process. In fact, unless a procedure is enshrined in the republican constitution, parliament can mend and amend its rules as it wishes.

This therefore, comes to the issue of what happened with regard to the injunction against parliament. Parliament was going to debate a motion on removing the immunity of the former president. This motion having been an internal matter of the legislative body could not be subjected to an injunction by the High Court.

Indeed the High Court does have jurisdiction to hear all legal matters and disputes in Zambia. But that power cannot possibly extend to internal procedures of parliament. Article 86 (1) of the Constitution states thus:

86(1) Subject to the provisions of this Constitution, the National Assembly may determine its own procedure.

However, I must here mention some limited circumstances in which the courts might interfere with parliament’s exercise of its powers.

First, the courts might interfere if parliament is exercising power that has not been conferred upon it by the constitution. Since Zambia is a constitutional democracy where the constitution is supreme over all other branches of government, if parliament exercised power that is beyond its mandate that power might be ruled unconstitutional by a court of law. This was the issue in the case of Bright Mwape & Fred Mmembe v The Speaker. In this case, the duo were charged and sentenced by parliament to imprisonment for a case known as “contempt of parliament.” The courts of law ruled that parliament does not have such powers under the constitution to try criminal matters and impose a custodial sentence upon offenders. Clearly, debating to remove the immunity of a former president is not a criminal matter and it does not involve parliament imposing any custodial sentence on an offender.

Second, the courts of law can interfere if parliament does not follow procedure set out in the constitution. This principle here is similar to the one mentioned above. If the law or the constitution specifically mentions that two-thirds of parliamentarians must vote on an issue and parliament ignores this constitutional requirement, the courts might intervene. For example, Article 37(2) prescribes how a motion to impeach a seating president should be passed. According to the constitution the vote to impeach the seating president should be “supported by the votes of not less than two thirds of all the members of the National Assembly.” With this clarity, any move by parliament contrary to this provision is subject to judicial review and reversal. Parliament would have abrogated the constitution if such a motion were passed without the constitutionally prescribed quorum. But where the constitution does not prescribe any specific procedure – it then remains for parliament to take its own procedures over such matters. In that regard then, the courts of law would not intervene or interfere.

Third, the courts of law can interfere if parliament enacts a law that is contrary to the constitution. Zambia practices a constitutional supremacy system. If parliament went against the constitution to enact a law that is contrary to the constitution the courts would be at liberty to strike it down. Unfortunately, the principle of parliamentary sovereignty has its limitations under the Zambian constitutional regime. This principle however, deserves some elaboration. Parliament can still pass a law that is unfair or ill timed, if this law is done within the constitution, the courts cannot interfere with parliament.

Some are suggesting that the speaker should have deferred to the High Court since the High Court had issued the injunction. They are suggesting that parliament should have respected the High Court. This is probably a misunderstanding of our constitution, parliamentary business does not need to wait for the judiciary to dispose of its cases. If that were the case, then the principle of the separation of powers itself would be in peril. At the heart of the doctrine of separation of powers is the understanding that no one arm of government should interfere with the constitutional exercise of the others’ powers. As was stated by the Supreme Court of Canada in Canada (House of Commons) v. Vaid (2005), “it is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs”.

Some of our fellow citizens are also suggesting that Speaker Matibini displayed double standards by deferring to the courts of law in some matters while refusing to do so when it came to Rupiah Banda’s injunction against the motion. The double standards come from the fact that when some MPs are expelled by their respective parties and appeal to the courts of law, the Speaker always waits until their cases are disposed of by the courts of law. This accusation of Mr. Speaker is unfounded. These are completely different matters. In the case of MPs losing their seats – these matters concern MPs membership to a party that brought them to parliament and is therefore a matter that is outside parliament. Since, it is a matter outside parliament it is important that parliament intervenes only after such matters have been disposed of from outside parliament. However, tabling a motion to strip Rupiah Banda of immunity is an internal parliamentary matter and the Speaker does not need to subject himself to the courts of law even before the matter is tabled for consideration.

However, after the legislature has made its ruling and passed its motion, Dr. Rupiah Banda and his legal team still have recourse to the courts of law to challenge a decision of parliament. That challenge, however, should be based upon constitutional objections. Looking at the precedence from the Frederick Chiluba v Attorney General (2003) case, the Supreme Court is likely to pay no attention to internal procedures taken by parliament in removing Dr. Rupiah Banda’s immunity. It suffices for the courts that parliament exercised its power rightfully accorded it by Article 43 (3). According to this article removal of immunity of a former president in Zambia requires a “resolution of parliament.” When addressing this question in the Chiluba (2003) case Chief Justice Ernest Sakala for the court stated:

It was never the intention of the framers of the Constitution that when the issue of removal of immunity of a former President arises, the former President would have the right to be heard.

Here is what Article 43 (3) states:

(3) A person who has held, but no longer holds, the office of President shall not be charged with a criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any act done or omitted to be done by him in his personal capacity while he held office of President, unless the National Assembly has, by resolution, determined that such proceedings would not be contrary to the interests of the State.

Since, this particular act of “determining” whether criminal proceedings against Rupiah Banda would not be contrary to the interests of the State, can be done by a parliamentary resolution, it remains for parliament to determine what a resolution would comprise. Precedence and parliamentary practice suggests that a parliamentary resolution could be done by simple majority of a parliamentary quorum.

Further, specific articles are relevant to the question of how parliament makes its resolutions. According to Article 84 (1), all questions at any sitting of the National Assembly are determined by “a majority of votes of the members present”. For there to be a valid quorum only a third of parliamentarians need to be present. This is what Article 84 (4)

84(4) The quorum for a meeting of the National Assembly shall be one third of the total number of members of the National Assembly and if at any time during a meeting of the National Assembly objection is taken by any member present that there is no quorum, it shall be the duty of the Speaker or person acting as such, either to adjourn the National Assembly or, as he may think fit, to suspend the meeting until there is a quorum.

As such for a parliament of 158 members it would take only about 52 members to make a quorum and out of these 52 a simple majority of 27 MPs could pass a parliamentary resolution. Whether this is indeed desirable or politically sound is beyond the scope of this present article.

Notwithstanding the provisions of Article 84 it is important to note that the simple majority rule does not apply in specific cases such as the impeachment of a seating president. For those questions, it requires two-thirds of MPs, as I have alluded to above.

It is my opinion that the decision to strip Rupiah Banda is politically flawed. However, I would not for a moment blame the law nor the constitution for it. It was a politically toxic decision for the Michael Sata government to make. But as far as the law and the constitution are concerned, Speaker Matibini was right. We can now watch closely the next legal circus to unfold. Dr. Rupiah Banda’s Bombasa has been stripped; it is now time to see the naked emperor.

In immunity we do not trust.

This article and opinions expressed are not meant to convey legal advice. Those needing specific legal advice on this issue and related matters should consult members of the Zambian bar. (c) Munshya wa Munshya 2013

By Munshya wa Munshya

Over the issue of the lifting of Rupiah’s immunity, we are conflating too many issues and I am afraid it is becoming confusing for me. I have not said that what parliament did was FAIR. I have not even supported the action of parliament. I have not said what they said was good for the country. I have not said Kabimba and Sata are sincere about what they have done.

In my earlier article  on parliament’s lifting of Dr. Rupiah Banda’s immunity, I was merely evaluating the legal and constitutional perspective of whether the Speaker was right at law to go on with the motion. I drew the conclusion that the Speaker was right taking into account Article 43(3) and the case of Chiluba v Attorney General (2003). I do understand that parliament rushed through what they did, but that is not a problem of law, but of politics. We have to agree on something before we suggest some changes we want to see in Zambia.

The removal of immunity is happening within a political and legal framework. If the argument is about politics, I would be the first to admit that the action was politically controversial, but this controversy should not be attributed to law or constitution. That was the point I was trying to put across. MPs are confusing matters and conflating too many matters. If they want to argue that the Speaker was wrong they better get what exactly the Speaker did wrong. If it is a legal wrong then they are sadly mistaken I am afraid.

I am for justice. I am for fairness. For example, I have written to defend people like Kay Figo when the law could not defend her. I have written for women’s rights  and I have urged the male dominated Zambian politico to respect women like Dora Siliya. I am for Zambia. But please do not make into an enemy. I am on your side with regard to where we are politically as a nation. My legal opinion that the Speaker was right must not be taken to mean that I then support what he did. Obviously, I do not. But I am very concerned though with some positions that my colleagues have taken. It disturbs me for some of our people to treat immunity like a fundamental human right. Banda or Sata do not obviously have a fundamental human right to immunity. Immunity is a creature of our laws and our constitution. Immunity is not our master, we are its master. Immunity should not divide us.

In any case, the people of Zambia voted in the last election for a parliament that was going to bring checks and balances on the executive. Parliament is a creature of our laws and constitution. Each MP is part of the legislative arm of government. But when they got to parliament, our MPs sold out to the executive. They decided to join the other side and betray us by voting on motions that some of us never supported, those motions I am afraid could include the motion to remove RB’s immunity. Had these MPs not sold out, RB would still have his immunity intact. This issue is a political issue, why is it that we always like to fault the law when our politics go bonkers? Why aren’t we outraged at these MPs the same way you are outraged at me for just pointing out that what Matibini did was within his constitutional mandate?

Unfortunately, regardless of how we feel about the fallen politics, when RB goes to court, he will have to deal with legal questions and not political questions. Dr. Rupiah Banda cannot use political arguments to deal with legal matters. Politicians had a role to play in parliament and obviously they never helped him, instead they sold out to Sata by a loaf of bread. That is the kind of debate we need to be having. We are a nation and should be a nation of laws. But if politics betray us, please let us not for a moment heap the blame of the laws. I want to make it clear – I do not support the PF government. I am its critic. But what happened in parliament was a matter that dealt with politics as well as laws, and my position was simply one sided – the question of law.

The hypocrisy of politicians is becoming nauseating to me. Where were they when Article 43(3) was being drafted? Where were they when Chiluba v AG (2003) was being passed? Where were they when the 1996 Constitution was being passed? Did not Hichilema say Banda was corrupt in the run up to the 2011 elections? What has changed now?

I am aware of the misdeeds of Sata and his minions and I have highlighted in my small way on my blog www.eliasmunshya.org the misdeeds of this government. I have said it that President Sata has appointed the most nepotic and tribalistic cabinet in the history of our country. I have mentioned that President Sata has no proper plan for Zambia. I have struggled with issues of his political legitimacy. However, Zambia is bigger and greater and we should allow ourselves to look at issues from different perspectives. I had to answer like this because there are many other of my fellow compatriots thinking I am taking too much of a legal side.

For now Rupiah Banda is in court. But legally, I do not think he will be successful. Saying so, however, does not and should not in any way mean that I am siding with injustice. I am merely siding with a reality that President Banda’s immunity has been legally removed from him and he must now begin preparing his defence if at all he will be prosecuted. We are on the same side – let us never forget that.

By E. Munshya wa Munshya

Frederick Jacob Titus Chiluba was never part of the political elite that developed in Zambia after independence in 1964. He was an outsider. In fact, this is the only reason that made him more attractive to his MMD colleagues in 1990 to challenge Kaunda in the first multiparty elections since independence. As such, Chiluba was not as politically sophisticated and his roots in power were very shallow. Apart from his trade union days – Chiluba was never at the axis of power during the Kaunda regime. He was never a part of the ruling aristocracy. As such, when his immunity was lifted after leaving office in 2002, he was an easy target. President Mwanawasa managed to put Chiluba in a corner and his lack of support depth demonstrated itself in the lack of real public and abiding backing for a man who had just ruled Zambia for ten years. On the other hand, Rupiah Banda had for many years been part of Kaunda’s ruling aristocracy. The years he had spent in Kaunda’s government both within the country and outside the country have proved that Banda could be a more formidable opponent against President Sata even as his immunity has been lifted. In the public relations battle after the stripping of his immunity, Rupiah Banda appears to be winning battles that Chiluba completely lost at the time that he (Chiluba) faced similar accusations.

Rupiah Banda had been a diplomat under Kaunda for many years. He had in fact, as Zambia’s Minister of Foreign Affairs, served at one time as President for Namibia under a special United Nations mandate. As such, when he assumed the office of presidency in 2008, he could very easily tap into the power structures all across the SADC region and beyond. Since, power in much of SADC region is still held by the same clique of people that had held it since the 1960s, it was easy for Rupiah Banda to rekindle old political flames and sustain for himself a political base both within and outside Zambia. This political base included power brokers in Namibia’s SWAPO, in South Africa’s ANC, in Zimbabwe’s ZANU-PF and in other ruling political parties across SADC. As such, faced with accusations of theft and corruption by President Sata, Rupiah is able to very easily garner some sympathy from his friends in the region. This is the feat that President Chiluba facing the same problems could not just achieve. There is also an important observation to be made here. Whereas both President Banda and President Sata were Kaunda’s political children, between the two, Rupiah Banda had more diplomatic connections than President Sata. As such, while Sata is rarely known within the African independence political aristocracy, the same cannot be said of Rupiah Banda. As such, in the battle for public relations after the stripping of his immunity, Rupiah Banda is appearing as a victim and is able to freely tap into his old friends.

It is said that Chiluba had about nine children. Rupiah Banda also has about the same number of children. It is quite interesting to note that Michael Sata does have a similar number of children too. Some put President Sata’s children beyond ten with different women. When Chiluba was assuming the presidency in 1990, none of his children were close to the political power base too. In spite of having children in the same age brackets as his other colleagues, Chiluba’s children were for the most part away from the political limelight and additionally; they lacked any real political, business or diplomatic clout. As such, in terms of family, Chiluba could not tap into the energy of his children for any political significance. This is one reason why to-date, none of Chiluba’s children have ever experimented with real interest in political affairs. Not only that, of Chiluba’s older children, none of them are as educated as children of either Sata or Banda. At the turn of the 1990 anti-Kaunda revolution, Rupiah Banda’s children were actively involved in MMD politics. In fact, one of Banda’s children Andrew was the MMD’s candidate for Chipata Central Constituency. The young Banda lost terribly in those 1991 elections in Chipata.

When Chiluba was fighting his immunity battles and answering criminal charges, he had no visible support from any of his children. As stated above, they had no political or business clout. Chiluba was left to fight battles alone. With Banda, however, there is a huge difference. Banda’s children could be seen as liability, but they could also be seen as assets too during this bombasa prosecution. This is because, having children appear in public for him and support him, humanizes him and creates some doubts in some Zambians that the old man is just being persecuted by President Sata for no real reason. In fact, Banda’s son Henry is exiled in South Africa tapping into his father’s old friends. And as the Zambian police continue to whine about young Henry’s criminal allegations, President Zuma and his ANC stalwarts are happy to provide Henry the protection he needs. Henry is, somewhat, helping feed into the perception that President Sata is just treating President Rupiah Banda unfairly.

Henry Banda, Andrew Banda and several of Rupiah Banda’s children realized the international significance of his father’s impending prosecution. As such, they moved quickly to find an international lawyer to represent them and to represent their father.

Robert Amsterdam provides no real legal help to the Rupiah Banda criminal charges. What he brings to the table, however, is a powerful public relations stunt disguised as law. Amsterdam has represented several politicians around the world. But his real role is that of managing his client’s interests not in the courts of law, but in the courts of international public opinions. For example, it is clear from the way he has commented on immunity removal and parliamentary privilege that Amsterdam does not quite understand the operation of Zambian laws. But that is a secondary matter to him. He is a powerful force in helping Rupiah Banda and team to win a public relations battle -especially outside Zambia. Very early, after Rupiah lost the elections, Amsterdam started defending the legacy of his client. Before the face of the UN and other international agencies, Amsterdam was quick to ensure that his client received favorable coverage as a victim of President Sata’s corrupt intentions to fix his predecessor. And for that reason, Amsterdam has succeeded.

When Chiluba was fighting Mwanawasa there was no Amsterdam to defend him. Chiluba’s public relations battle was not fought very well. He was left alone to face the Mwanawasa machinery. This time around that we have identical issues playing around, Rupiah Banda is more prepared than Chiluba ever was.

Chiluba was acquitted shortly after Rupiah Banda assumed the presidency. Mwanawasa had died and the prosecution, which started in 2002, only concluded some six years latter. Zambians had grown tired of this prosecution. Chiluba came to be taken as a victim rather than as a criminal during this long trial. Indeed, when the acquittal came in 2009, it did not come as a surprise. In the minds of many Zambians, the immunity removal and subsequent prosecution of Chiluba had taken too long to be any significant in the fight against corruption. As such, Rupiah Banda is winning the public relations battle against President Sata partly because of how Zambians remember the last time an ex-president was prosecuted by the State.

Among charges Mwanawasa had leveled against Chiluba was that Chiluba had stolen millions of dollars and stashed the cash in assets and bonds overseas. However, six years latter Chiluba had been acquitted of the $400,000 theft charge he had ever been prosecuted for. Additionally, the London civil case that the State had won in London returned to Lusaka without any significant seizure of the so called assets and bonds that Chiluba had stashed overseas. What happened, to all those allegations? Well as it turned out, the allegations that Chiluba had assets hidden in London came out to be false. With the London judgment President Mwanawasa could not even obtain one asset that belonged to Chiluba. The only solace the State found was to domesticate the London judgment so that they could go for Chiluba’s house in Kabulonga. As it turned out, all those assets Zambians were told Chiluba stole could not be found. The few tractors and boats that the State confiscated to date have not been accounted for and the Task Force on Corruption has not explained where they took the money they had collected from a few assets they had seized.

The finding of the Chiluba cases left a bitter taste in many Zambians. They had been duped. This being the case, most Zambians do not seem to be eager to follow through another court case that might end up like Chiluba’s. It is this Chiluba outcome that is gifting Rupiah Banda with a public relations bonanza. If Mwanawasa’s accusations proved to be false, what makes an ordinary Zambian believe that Sata could be right about President Banda this time around? And of course the time and money spent on Chiluba’s prosecution amounted to $10 million dollars most of which was funded by the donors to go to legal fees in both London and Lusaka. In Lusaka, Mutembo Nchito and Company lawyers were the main beneficiaries of this money.

The donors had also believed that Chiluba had stolen. This is why they invested their millions in Mwanawasa to help him find the culprits and punish them. Except that it had taken very long, and the case against Chiluba had turned into a debacle only to have significance latter this year with the removal of Rupiah Banda’s immunity.

After the death of Mwanawasa, European countries and donors did not like the Rupiah Banda presidency. They had some belief that Rupiah was corrupt. In view of this, they found a willing candidate they could support – opposition leader Michael Sata. Europeans, especially liked Sata’s anti-Chinese stance. In a battle for resource supremacy, surely, the West was going to benefit from an anti-China future President Sata. Except that, the West really did not know what they had bargained for.

After Sata had won the 2011 elections, the first act of his presidency was to decree the change of names of the Zambian international airports. If anyone thought that Sata was going to be a president for the future of Zambia, it left no doubt that Sata was not going to be a president for the future but for the past. Western capitals got more shocks when instead of deriding the Chinese; a newly installed President Sata did a U-turn and feted the Chinese instead. More policy confusions were to follow. In appointing cabinet, President Sata abrogated constitutional requirements and nominated 2 more MPs than the constitution allowed. Even if this was a small mistake – what it represented was worrisome. A president with a tax paid contingency of staff and advice cannot make such a basic mistake. It is either he did not ask for help from his advisors or he asked for it and ignored them. Regardless of how you look at it, a dictator had been birthed in Zambia, and the Western capitals would regret the support they gave him.

Within months of a Sata presidency, civil liberties had deteriorated in Zambia. Opposition leaders were arrested and faced intimidation from the police. These singular acts of presidential terrorism would make ex-president Rupiah Banda appear like a saint. Already, Western civil society organizations looking for an African hero, started to court Rupiah Banda. Boston University called him into residency and Jimmy Carter asked him to observe elections in many parts of Africa. In the meantime, Michael Sata’s thirst for confusion continued unabated. While all this is going on – Banda’s esteem in the eyes of the West was growing while Sata’s was diminishing. The same trends were happening in Zambia among the ordinary population. Suddenly, Banda started to appear like a saint.

Chiluba never had anything like the fortunes Banda has. Mwanawasa received lots of support from the West during the prosecution of Chiluba. Additionally, students, churches, as well as general population went to parliament hill to support a parliamentary motion to strip Chiluba of his immunity in 2002. In 2013, when parliament was debating to remove Rupiah Banda’s immunity, not even a single crowd had gathered to offer support. Michael Sata had lost a public relations battle that Mwanawasa handled very well when dealing with prosecution of his predecessor.

On 15 March 2013, Wynter Kabimba stands up in parliament and moves a motion to strip Rupiah Banda of immunity. Among charges Kabimba reads are Rupiah’s acquisition of lollipops and branded underwear. The charges appear similar to what Mwanawasa had alleged Chiluba had done. But there is a difference. President Mwanawasa was regarded as quite sincere in his desire to prosecute Chiluba. With this perceived sincerity came some public sympathy. But with Kabimba moving a motion to strip Banda of his immunity, the public is not as sympathetic. Hon Kabimba himself is facing accusations of corruption. He is alleged to have solicited a bribe from an oil company within days of the Michael Sata presidency. If a maxim of equity states that “he who comes to equity should come with clean hands”, the public does not perceive Kabimba to come to equity with those clean hands. Kabimba has dirty hands and his involved in the immunity saga just goes to work to Banda’s advantage in the public opinion. Banda is winning where Chiluba had lost because of shady characters such as Wynter Kabimba.

If Mwanawasa fought Chiluba due to corruption, it is clear that Sata is fighting Banda not because of corruption but because of politics and personal unbridled hatred. Indeed, now that Zambia is having the second crack at the bombasa prosecution, it is clear from the outset, that times and circumstances have greatly changed. Chiluba, the accused lost much of the public relations battle when dealing with Mwanawasa, but this time around it seems it is Banda, the accused who is winning the public relations battle. What remains, however, is to see how this will actually translate before a court of law.

“Not guilty” is what Rupiah Banda has pleaded before Magistrate Joshua Banda. The public does seem to agree with him.

I have not given up on Zambian Railways and neither have I given up on the Zambian people. I have not given up on the resolute will of our people to better our country and restore our future.I believe in Zambia and I believe in its destiny. But at the same time, I believe that we must change our systems if we are to effect true change to ZRL, ZESCO, or even NCZ. The current parastatal system in Zambia does not help these companies instead these companies become conduits for political opportunism and nepotism.

Parastatals have never made a profit since 1964. Parastatals have been run not on a business model but on a political model. Parastatals have not had professionals running the boards but they have been staffed with relatives, nephews, nieces and great-grandsons of the politicians. Regardless of how brilliant a manager is, once the politics enter the boardroom, there is no way ZRL would have enough goodwill left to even build a single engine.

Chirwa is done. And so is Michael Sata come 2016. However, there is hope for parastatals I must confess, the hope that Munkombwe talked about, the hope for the next mouth to go into the parastatal boards to steal. There is hope for Munkombwe and the corrupt known to steal a little bit more from the poor. Zambia can do better, but parastatals under the current model will only go to ensure that after Chirwa returns to Britain we will have another brilliant man waste his talents on mud unless he provides a few millions to the board members. These board members have worked hard, and yes they have. They campaigned for Sata in 2011 and it is their time to eat.

Seleni tusheteko.

Zambia’s Acting Chief Justice Lombe Chibesakunda – 2013

By E. Munshya wa Munshya

It should not calm any nerves to realize that an analysis of the majority ruling in Attorney General v Mutuna, Kajimanga and Musonda should begin by looking at a single sentence taken from its last paragraph. Acting Chief Justice Lombe Chibesakunda,  stated in the last paragraphs of her over 120-paged opinion that:

“Before we end, we want to state that although we agree that the President in exercising the powers vested in him under Article 98 has unfettered discretion under the said Article, we nonetheless believe that it would be advisable, considering circumstances of this matter, for the tribunal not to proceed.”

This sentence as much is it is conceived with controversy is also pregnant with a lot of meaning. But the questions still remain. Was this sentence put into the judgment as an afterthought? Did the majority of the four judges have a disagreement such that to appease someone in their midst, they had to insert these words? What exactly did they mean when they held that it would be advisable for the tribunal to not proceed?

This sentence of all the other issues in the judgment provides perhaps the greatest insight into what was really at stake when the Supreme Court took up this issue. I wish to argue that the judgment of the Supreme Court is fundamentally flawed and the basis upon which they held to discharge the stay of proceedings was faulty to say the least.

President Michael Sata used his powers under Article 98 of the Constitution to suspend three judges. He consequently, constituted a judicial tribunal to make enquiries into their misconduct. The president alleged that he had credible information that the three had misconducted themselves in their discharge of judicial duties. After the president had written them, they sought leave from the High Court and a stay of proceedings  to restrain the President from going ahead with the tribunal while they contested his powers to suspend them and constitute a tribunal.

At issue was whether the President in his use of Article 98 powers contravened Article 91 of the Constitution, which envisages the Judicial Complaints Authority as the appropriate body to hear grievances about judicial misconduct. As such, they argued that the president’s powers in Article 98 must be exercised in conformity with Article 91 so that the President must at least consult with the Chief Justice and with the Judicial Complaints Authority before he could execute his powers in Article 98. Additionally, Justice Mutuna and others contended that by appointing a tribunal to make enquiries into a matter that was before court, the President had usurped the powers of the Supreme Court of Zambia. There are many elements to the issues raised by the judges but for brevity and clarity we should leave them at that.

In the High Court, Justice Fulgence Chisanga, granted leave  to the suspended judges and held that prima facie they had arguable grounds upon which a stay of proceedings against the tribunal could be granted. The State through both the Attorney General, Mumba Malila SC and the Solicitor General Musa Mwenye instead went to Justice Chisanga and asked her to discharge the stay of proceedings. She refused and instead ordered trial of substantive issues that the suspended judges had raised.

It was at this point that the Attorney General appealed to the Supreme Court. The court was asked 9 questions among many other elements. The principal issues being that High Court Justice Chisanga should have discharged the the stay of proceedings. They also argued that the president did have the power according to Article 98 of the constitution to suspend the judges and institute the tribunal. In view of the two principal articles of the constitution the Supreme Court was invited to rule on whether by exercising Article 98 powers, the President should have considered judicial independence as articulated in Article 91 of the Constitution.

The Supreme Court’s judgment is quite surprising to say the least. Perhaps the most astounding of all they held, was ruling that the President was legally right in using his constitutional powers to suspend the judges, but at the same time, they provided “advise” that the tribunal should not go ahead.

Surprisingly though, this ruling and the reasons the Supreme Court has advanced for stating that Article 98 powers could be exercised without recourse to Article 91 and in fact without any further recourse to the Judicial Complaints Authority deserves some analysis.

The Supreme Court judges confused matters when they held that the appropriate method of constitutional interpretation in this matter should be “literal rule of interpretation.” To buttress this position, the court relied on the Miyanda, Chiluba and the Mwanawasa cases.  The literal rule of interpretation according to Justice Chibesakunda is that the ordinary meaning and ordinary grammatical meaning should be assigned to constitutional texts.

I am of the view that the rule of interpretation was not at issue in this matter. The issue was not whether the meaning of Article 98 was ambiguous or not. What was at issue was comparative constitutional law. The question should have been whether Article 98 and Article 91 could be interpreted harmoniously or not. Coming to any conclusion was not going to be dependent on “natural or even grammatical” meaning of any text. And in fact, I am of the opinion that the “purposive interpretation method” would be more helpful though in resolving the interplay of Article 98 and Article 91. The purposive interpretation looks at the wider context of law and seeks to interpret constitutional texts in ways that give effect to wider concepts and fundamentals of the law. I must return to this latter.

The other questionable thought pattern employed by Justice Chibesakunda and the majority concerns their “dualization” of Article 98 and Article 91. This is fundamentally offensive at constitutional law. In this duality, Justice Chibesakunda and her majority envision Article 98 and Article 91 as existing in different planes and in fact in different universes, as it were, and as such, they do not in any way see how the exercise of the President’s powers in Article 98 could in fact impact on the exercise of Article 91 powers. Chibesakunda ACJ chose to ignore any interaction of these articles and strictly created a dichotomy that problematically, divorces these articles even though these two articles have impact upon the common subject matter.

It is in this vein, that Chibesakunda sees the Judicial Code of Conduct (which is a product of statute) not as a broad product of constitutionalism, but rather simply as a product of one isolated constitutional article, Article 91, of the Constitution that cannot impact on any other articles. This is problematic. The Judicial Code of Conduct is a constitutional tool that can be used by both the Executive and the Judiciary to deal with judicial misconduct. But to conceptualize it simply as a product of one universe inhabited by Article 91 and not be a subject of Article 98 of the constitution is to create a constitutional dichotomy that by itself betrays the very tenets of constitutionalism.

Indeed, a literal interpretation of the Judicial Code of Conduct to the extent that it is interpreted only as a child of Article 91 and not Article 98 is inconsistent. For example, it is in the preamble to the Constitution of Zambia where Zambia is declared as a “Christian Nation”. And yet while this is the case within the preamble, the Supreme Court has “purposively” interpreted this provision and robbed it of any justiciable value. This is what they held in the case of Roy Clarke v Attorney General. That being the case, how come this time when it comes to the Judicial Code of Conduct the same court is now interpreting the preamble in a “literal” sense?

The next problem and perhaps the most controversial of them all, is the doctrine that Chibesakunda seemed to have invented. The idea that the constitution has put up the President to be the “guard of the guards.”  Under this doctrine, while Article 91 provides for such avenues as the implementation of the Judicial Code of Conduct, the other avenue by which judges can be kept in check, according to Chibesakunda, is by the President using his “discretionary” powers under Article 98. According to the court:

“It must be an equally democratic tenet to enshrine in the Constitution the limited checks on the Judiciary by the Head of State through the establishment of tribunals where the President receives credible information.”

This thinking is problematic to the extent that it erodes and offends the doctrine of the separation of powers. Zambia being a common law country is founded on several constitutional principles. I should say that while a written constitution is the supreme law of Zambia, the constitution itself predicates from unwritten principles and values that should underline any subsequent interpretation of the constitutional text. As such, the courts of law are called to give effect both to the text and to the spirit of the text of the Zambian constitution.

One of those principles undergirding the spirit of our written constitution is the wellspring of separation of powers. In simple terms, this principle basically states that the Judiciary is not subordinated to the Executive. As such, the president in all his powers is not head of the judiciary and cannot possibly be its “guardian”. That being the case, the best way to approach constitutional text that seem to give more power to the president over the judiciary, is to interpret such texts in ways that does not offend the principle of separation of powers. It is on this point that the Supreme Court erred.

In this regard then, the Zambian Supreme Court, having been faced with a dilemma between Article 98 and Article 91 powers; they should have interpreted these articles in ways that conform with the principle of separation of powers. This being the case, it should be repugnant for Justice Chibesakunda to claim that the President as Head of State should have powers to suspend judges based on “information he receives as Head of State.” According to Chibesakunda:

“…the legislators intended to lay down procedures of making it possible for the President as Head of State to deal with that exclusive class of adjudicators without recourse to the Judicial Complaints Authority”.

Further, Justice Chibesakunda sees the presidential exercise of Article 98 powers to be in the common good of our democracy. But as stated by the suspended judges in their affidavits, one of the reasons why President Sata instituted the tribunal is not because of any meaningful democratic ideals but rather it was connected to a ruling from Mr. Justice Mutuna that went against the President’s political collaborators. As such, the idea that it is in the interest of democracy that a president should suspend judges is at least, prima facie, questionable in view of the reasons why President Sata constituted the tribunal. It cannot be democratic, that which is done to only protect the president’s close business and political associates.

Closely connected to the above paragraph, the Supreme Court seems to imply that since Article 98 powers are exercised only in an executive capacity, this cannot offend the separation of powers. This is a lame reason. According to Justice Chibesakunda, the president’s invocation of Article 98 powers only deals with investigation of a judge and not a prosecution of a judge. This so-called investigation doctrine is even more belligerent. Couldn’t the honorable court have looked at the impact that such investigations could have on the independence and impartiality of the judges? Should judges loose their independence simply because the tribunals set up under Article 98 are just investigatory in nature and not prosecutorial in nature?

Perhaps more bizarrely, Justice Chibesakunda further held that, “since the tribunal process is investigative in nature, Judicial Review cannot be used to curtail these investigative processes”. It does not get any more problematic than this. I should strongly disagree here with the Supreme Court. The tribunal cannot be said to only be “investigative in nature”. A few sentences down the line, Justice Chibesakunda contradicts this “investigative character” of the tribunal by stating: “the President must act on the advice of the tribunal, without discretion.”

This being the case, it means that the “investigative” doctrine that Chibesakunda seem to be inventing is untenable. It cannot be investigative that which will make categorical recommendations about the fate of a judge of the suspended high court judge. This is not how investigations work. The fact that the Judge Chikopo (intentionally misspelled here) tribunal will in fact, make recommendations binding on President Michael Sata should move the tribunal from being an investigative body to being a judicial body and if that is the case, then judicial review that seeks to question the very basis of such powers should at least be considered by the courts of law.

This idea from the judgment of the honorable judges of the Supreme Court is a contradiction to say the least. Or as we used to call it in Chiwempala: this is “double tobela.”

Again, what the Supreme Court of Zambia says in the following paragraph is so irresistibly ironic:

We also hold the view that His Excellency was not exercising quasi judicial powers.  We hold the view that conferment of wider discretionary  power vested in His Excellency are indicative of the absence of  His Excellency acting judiciously, see the  case of R vs Governor of Brixton.  

While indeed the Court might claim that the President is not acting in a quasi-judicial capacity when he sets up the tribunal, the fact that the tribunal’s recommendations should be carried out by the president without discretion should lead to the conclusion that this exercise of Article 98 powers is in fact quasi-judicial. Indeed, had the tribunal been only an investigative agency and not a judicial one. Indeed had the tribunal only investigated the facts of the cases without proffering any binding recommendations, the President could have gotten away with this doctrine. But unfortunately it is not so. As such, if this does unchallenged, the president will act to fire the judges on the basis of the recommendations from the tribunal. As I have stated above: this should bind the president to act judicially.

The next problem with the Supreme Court ruling is couched in very interesting language. According to Justice Chibesakunda:

In order to guard jealously the sanctity of our Constitution, we cannot give Constitutional provisions a meaning that may impeach the explicit, implicit and clear language used. 

But what the learned lady misses in so saying is that the constitution does not only contain the powers of the President, it also contains the powers of the judiciary. Constitutionalism is not only a commitment to presidential or executive powers; it is also a commitment to judicial powers. It falls upon the judges to ensure a balance of these powers if a conflict is noted. Prima facie, the suspended judges noted a clear conflict of powers in Article 98 and Article 91, it was for the court to address this issue rather than only give credence to the immutable power of a President.

In spite of being a lady of tremendous political insight and experience, Justice Chibesakunda seems to have conveniently left out the political realities in her interpretation of presidential powers. No judge of the Supreme Court should take himself or herself as living in a legal cave, unaffected by current political realities. These judges are human and do know the impact of political patronages going on in our democracy. As such, it is quite disturbing for Justice Chibesakunda to confer reasonability on presidential action simply because the president should have had “credible information” when deciding to suspend Judges Mutuna, Musonda, and Kajimanga.

According to Justice Chibesakunda it is from the authoritative position of “His Excellency” where she and her colleagues infer the idea that he reasoned “reasonably.” I can’t just figure out how Chibesakunda is reasoning here. She is saying that the President cannot possibly act irrationally or unreasonably simply because he is the authoritative president of our republic and head of our State. In my opinion, no opinion of the Supreme Court can get weirder than this. As such, the Courts continued to state, “it would be illogical and unreasonable to hold that he did not receive credible information as President for him to act as he did.” This sentence does not make sense to me.

So is the Supreme Court becoming a judge of what is credible information or not? Should intelligence information that a president receives be the basis upon which he can unilaterally fire judges?

And then the Supreme Court comes up with something just unusual. The Court stated that the President is “the overall authority on everything”. What exactly does this statement mean? In Zambia, the President holds executive authority, but this cannot be conceptualized as being the “overall authority on everything”. Which “everything” did the Supreme Court mean here?

And then they justify this overall authority over everything doctrine by claiming that the President’s sources are “exclusive to the public domain and must be impeccable”. Reading this, one would wonder whether this is a judicial opinion, or it is some praise prose intended to catch the attention of a tumultuous suitor. The fact that the president has impeccable sources exclusive to the public domain does not immune the president from acting judicially or quasi-judicially in instituting tribunals which themselves have judicial effects. In fact, human experience has taught us very eloquently that even the most intrusive of executive powers can get its intelligence wrong. Intelligence information that the president has at his disposal is insufficient on its own to form the basis for judicial or even quasi-judicial functions. It is never contemplated in our constitutional make-up that the executive privilege of the President should be so used as to intimidate and suspend judges on the basis of “credible impeccable information” at the disposal of only one man. The judges need reminding that Zambia is not a dictatorship; it is a democracy. And using the words of Mambilima DCJ, “The president is not above the law.”

This being the case, perhaps what nailed it for the Supreme Court was its last paragraph of the substantive opinion. “Although we agree that the President in exercising the powers vested in him under Article 98 has unfettered discretion under the said Article, we nonetheless believe that it would be advisable” said the judges, “considering the circumstances of this matter, for the tribunal not to proceed.”

With these words ended one of Zambia’s most controversial Supreme Court opinions. Without elaborating on those “circumstances of this matter,” it is up to ordinary Zambians to infer why the Supreme Court felt it was not advisable to proceed with the tribunal in spite of holding, with a forked tongue, that President Sata exercised his powers correctly.

In my humble opinion, the Supreme Court so advised because, they really did not have any reason to hold otherwise. Their reasoning was flawed.

(c) 2013. This article is not intended to provide legal advice. Only members of the Zambian Bar can provide specific legal advise on questions raised in this article.

By E. Munshya wa Munshya

Petitions

After Zambia’s elections of 2011, the party that won the elections, the Patriotic Front (PF) decided to petition dozens of seats won by the opposition parties. Among other reasons for so petitioning, the PF contended that these particular seats had been won either fraudulently or corruptly. Among the seats petitioned are those of close associates of former president Dr. Rupiah Banda who had lost the presidential election to the Patriotic Front’s Michael Chilufya Sata.

The Supreme Court of Zambia nullified the election of Dora Siliya for Petauke, Mutolo Phiri for Chipata Central, and Maxwell Mwale for Malambo. Several other seats were also nullified triggering by-elections in all these constituencies. Some sections of Zambian society have held rather than good will, the PF triggered these by-elections so that they could get the needed majority in parliament to have Zambia revert back to the dark ages of the UNIP dictatorship.

There has been debate about whether under the current electoral laws; a candidate whose election is nullified can stand for re-election in the nullified seat. This question became even more heated after the ruling Patriotic Front accused the Electoral Commission of Zambia of flouting electoral regulations by allowing the nullified candidates to recontest their seats. In addition to the ruling party, a local civil society organization, the Transparency International also asked the ECZ to bar the likes of Dora Siliya, Maxwell Mwale or even Mutolo Banda from re-contesting their seats since the Supreme Court had nullified their elections.

At the heart of this dilemma is the provision from Section 22 (b) of the Electoral Act of 2006 which states, inter alia, that:

Any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the High Court upon the trial of an election petition under this Act shall not be qualified for election as a member of the National Assembly for a period of five years from the date of the conviction or of the report, as the case may be.

Obviously, the Patriotic Front is interpreting this provision to mean that people like Dora Siliya whose election to parliament were nullified by the courts of law should be barred from re-contesting. The Electoral Commission of Zambia (ECZ) on the other in a statement released 1 August 2013, has argued that the ECZ can only act to bar candidate if the High Court provides to the ECZ a report pursuant to Section 104 of the Electoral Act 2006. Section 104 (6) and (7) of the Electoral Act 2006 states as follows:

(6) Where it appears to the High Court upon the trial of an election petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election petition relates, the High Court shall, at the conclusion of the proceedings, prepare a report stating—

(a) The evidence given in the proceedings in respect of the corrupt practice or illegal practice;

(b) The names and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the Court, committed:

Provided that the Court shall not state the name of any person under this paragraph unless the person has been given an opportunity of appearing before the Court and of showing cause why that person’s name should not be so stated.

 (7) The Registrar shall deliver a copy of every report prepared by the High Court under subsection (6) to—

(a) the Commission; and

(b) the Director of Public Prosecutions.

(8) The Commission shall, as soon as it receives the report under subsection (7), instruct an officer to prosecute any person stated in the report.

It is my opinion that the ECZ’s interpretation of section 22 using section 104 is correct at law. As such, for reasons presented below, I would hold that it was never the intention of Zambia’s electoral laws to disqualify any candidate from re-contesting a nullified seat without further instruction and deliberation from the High Court.

The Civil and Criminal Law Distinction

 To clear the confusion, we must first begin by differentiating between the goals of two different aspects of legal suits tenable in the Zambian judicial system: a civil suit or a criminal suit. Each of these come with different remedies and in fact, has different goals. As such, in order to understand the desired outcome of any legal suit, it would be important to first understand its categorization at law. A criminal offence is usually aimed at punishing an offender and is commenced by the state against an offender. An interested party who takes another party to court to seek specific or general remedies on the other hand initiates a civil case. In the context of an electoral petition, a petitioner asks the court to nullify the election of a respondent. The parties to an electoral petition are private individuals contesting competing rights to a seat in parliament.

Criminal law on the other hand has different goals in mind. It seeks to punish offenders for specific offences that have been proscribed through the Penal Code and other laws. According to the constitution of Zambia, the Director of Public Prosecutions is the primary officer that prosecutes criminal offences in Zambia.

That being the case, it is clear that Section 102 (3) of the Electoral Act of 2006 specifically mandates the High Court to “exercise such powers within its civil jurisdiction as it may deem appropriate.” This provision, therefore, shows that the main element of an electoral petition is civil rather than criminal.

Having established that electoral petitions are primarily civil suits, the next issue to deal with concerns remedies. In most cases, a petitioner asks the High Court to nullify an election based on several grounds. The petitioner primarily contends that the election was not free and fair. Based on the evidence she provides, she can then have the court rule in her favour and nullify the election of a respondent.

This then brings us to the question of the standard of proof. In a civil case, the standard of proof needed to prove a case is a balance of probability. This means that it is more likely than not that evidence rendered proves a particular point. However, the Zambian Supreme Court has raised the standard of proof needed in electoral petitions. In the case of Lewanika and Others v Chiluba and in the newer case of Sikota v. Mabenga the Supreme Court ruled that the appropriate standard for proof in electoral petitions should be slightly higher than civil case’ balance of probabilities but must be below the criminal threshold of “proof beyond reasonable doubt.”

Indeed, there is not standard higher than “proof beyond reasonable doubt.” This standard is used in criminal proceedings. The reason for a higher standard in criminal proceedings is that no innocent person should be punished for a crime they never committed and that it is in the interest of justice that the State which has almost unlimited resources should be able to gather all resources necessary to prove its case.

Having dealt with some background information above, I must now turn to the question of whether the drafters of the Electoral Act intended to disqualify candidates from re-contesting their seats. To do so we must focus on the actual text of the Electoral Act.

According to section 22 of the Electoral Act there are several categories of people and situations that would lead to a candidate being unqualified.

Criminal Conviction Bars A Candidate

 First, any person who is convicted of any corrupt practice or illegal practice shall not be qualified. Without further complications, this provision does seem to contemplate a clear criminal procedure. If a person is convicted of any corrupt practice or illegal practice, they are then disqualified. The term conviction is used only in the context of criminal proceedings. It is ridiculous to say that a person was “convicted” in a purely civil matter. The correct term to use in civil cases is “liability” or terms to that effect.

Specifically, when it comes to bribery and corruption, it is the DPP and the Anti-Corruption Commission who can bring a bribery or corruption case against a particular candidate. The ACC Act of 2012 (s.35 (1)) provides thus:

 (1) The Commission has jurisdiction to investigate and prosecute any offence of bribery prescribed under section seventy-nine of the Electoral Act, 2006.

It is Section 87 of the Electoral Act 2006 that explains further punishment for those convicted of an “illegal practice”. The guilty shall be liable on, conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both.

Again to reiterate here, once a candidate is convicted not only would they not qualify to stand for re-election, they would also face jail time. Just as stated above, it is important to differentiate what is going on in a criminal trial and what obtains in a civil case. It is impossible to have a criminal trial within the context of an electoral petition. What an electoral petition can do is to make specific recommendations and observations upon which the DPP may make independent Judgement of whether he could proceed to charge the offender with criminal offences.

“Report” From the High Court Can Bar A Candidate

The second category of people disqualified are those who are “reported guilty” of any corrupt practice or illegal practice by the High Court upon the trial of an election. The first limb of section 22 is quite clear; any one convicted is not qualified. In the second limb however, very interesting words are used. For a person to qualify under this limb, they must have been “reported guilty”. The first one was to do with conviction, while the second limb deals with “report.” This report is only explained in Section 104 of the Electoral Act of 2006 as being the report that the High Court makes to the ECZ. And so, it is expected that if during the electoral petition, the High Court find reasons why a respondent should be “reported”, the High Court will then send the ECZ evidence and transcripts and report such a candidate. The consequence of a report triggers either a criminal prosecution by the DPP or a disqualification from contesting further elections.

The challenge, the “report” provides is that, it emanates from a civil case – that is it emanates from an electoral petition and yet has consequences similar to criminal convictions for corruption. In the case of Sikota v Mabenga, the court held that even if the case was of a civil nature, the respondent’s actions where so outrageous that they bordered on criminality. In its Judgement, the Supreme Court even went to the extent of recommending the prosecution of Mr. Michael Mabenga for corruption and theft of CDF funds. It is this kind of clear Judgement, which in my opinion triggers the application of S.104 (7) of the Electoral Act. Without categorical report about corruption from the High Court, it would be difficult for the Electoral Commission of Zambia to act and bar a candidate.

Conclusion

Without clear guidelines from the High Court that a candidate did in fact participate in some form of corruption or bribery of theft, it would be unfair to disqualify them from contesting their vacant seats. On the other hand, if a candidate has been convicted of corruption or stuff like that, then they must not stand as candidates. As for Dora Siliya, Michael Sata and Wynter Kabimba should prepare to meet her in Petauke as their “catch 22″ has failed.

(c) 2013, Elias Munshya wa Munshya is not a member of the Zambian Bar. Specific legal advise should be sought from members of the bar. This article is for educational purposes only and does not intend to convey legal advise. 

By E. Munshya wa Munshya

President Michael Chilufya Sata – The King Cobra

President Michael Sata in May 2013 used his powers as President of the Republic of Zambia to withdraw government recognition of one Henry Kanyanta Sosala as Senior Chief Mwamba of the Bemba people. According to President Sata, Sosala did “not fully undergo Bemba rituals for him to ascend to the throne of Senior Chief Mwamba.”[i] Just what made Sata to be the arbiter of Bemba rituals is an open question we attempt to ask in this article.

After some hesitation, Henry Sosala succumbed to presidential pressure and conceded to President Sata’s demands. He resigned from the Mwambaship and apologized to President Sata for the embarrassment he had caused him.[ii] On the other hand, the Bemba traditional elders were quite displeased with what they perceived to be President Sata’s interference with their traditional matters. In a meeting held with President Sata’s emissaries, Chiefs Affairs Minister Nkandu Luo and Defence Minister Godfrey Mwamba, the Council of Bemba elders (Bashi Lubemba) expressed concern at the president’s action and asked that Sata stops to interfere in traditional affairs.

In August 2013, two months later, the same traditional council sat and decided to pick the same de-gazetted Henry Kanyanta Sosala as the next king of the Bemba Commonwealth. This in many ways went against President Sata’s wishes. First, the President had initially degazetted Sosala as Chief Mwamba. Second, Sosala himself had succumbed to presidential pressure and left the throne. Third, it is quite unusual that the Bemba traditional council would go ahead to grant supreme control to a chief who had been degazetted by the president.

That this act by the Bashi Lubemba will set of some stand off with President Sata is clear. Some reports suggest that president Sata has personal interest in the Bemba chiefdom that makes him desire to have a close relation of his to ascend to the Bemba chieftainship. In clear defiance of his wishes, the Bashi Lubemba have made perhaps one of the clearest statement to president Sata that they will not succumb to his wishes. As far as they are concerned, they have made the choice of a new paramount chief of the Bemba, and that person will have to be Sosala – the same person, President Sata degazetted.

In this battle, it is our opinion that President Sata should desist from causing any further confusion in the Bemba traditional affairs. It is also our submission that if president Sata decides to act any further against Sosala or against the Bashi Lubemba, it will be a battle he cannot win. And this is so, for several reasons.

It is important to set aside some misconceptions concerning the Bemba Empire. There has been some reports that President Sata being Bisa of Mpika cannot and should not have any interest in the Bemba traditional affairs. The truth is that in the present state of affairs, while the Bisa peoples and the Bemba peoples remain distinct, there has been incessant blurring of that distinction. As such, the argument that President Sata does not have tribal or familial interest in the Bemba affairs because he is not Bemba is an accusation not steeped in reality.

In the Bemba and Bisa ruling aristocracy, there is no distinction between a Bisa and a Bemba. We could take one example: the Chibesakunda chiefdom of Chinsali. Even if the Chibesakunda chiefdom is a chiefdom of the Bisa, Chief Chibesakunda herself is supposed to be a Bemba belonging to the Ng’ona clan. Essentially, then the Bisa people of Chinsali have a Bemba lineage ruling over them. However, with intermarriages and in fact, matrilineal system of succession the distinction that should exist between who is Bemba and who is Bisa in the royal household of Chibesakunda and indeed among their subjects has been blurred further. The auxiliary blurring of these lines happened a few years ago when the Chibesakunda Royal Court appointed Bob Bwembya Luo, a Bemba from the Ng’andu clan to become the Chief Chibesakunda. This brought some protests from a Bisa and former parliamentarian Newton Ng’uni[iii] who in March 2007 wrote that the new Chibesakunda was actually a Bemba from Abena Ng’andu and as such could not ascend to a throne reserved for Abena Ng’ona. President Mwanawasa’s government was swift in gazetting this new Chibesakunda, partly to bring stability to the chiefdom, which had not had a substantial chief for decades.

Using what happened with Chibesakunda as an example, the choice of a chief by a royal council is almost sacrosanct; courts of law do not and should not interfere with choices done by the royal council. This being the case then, those who think that a Bisa has no interest in the Bemba traditional affairs unfairly target President Sata.  We must submit however, that President Sata’s interest or interference in Bemba traditional affairs should not go to the extent of meddling with the Bashi Lubemba.

Traditionally, the Bashi Lubemba is the Bemba Royal Council that is custodian of Bemba traditions. It also carries out the sacred duty of choosing of the successor of the Chitimukulu throne. In Bemba traditional management the second most senior throne next to the Chitimukulu is the Mwambaship. After Mwamba comes several other chiefs such as Mpepo and Nkula. It was customary that after the death of Chitimukulu it is the Mwamba that accedes to the throne.

However, it is not automatic that Mwamba becomes Chitimukulu for it is the Bashi Lubemba who appoints a Chitimukulu. A few years ago, the Bashi Lubemba in favour of a chief Mpepo bypassed a chief Mwamba. Mwamba then decided to take the matter to the High Court. At first instance, Justice Nyangulu declared Mwamba to be the next Chitimukulu and chastised the Bashi Lubemba for not following customary law that made a Mwamba to be the next Chitimukulu. Mpepo appealed against this decision and the Supreme Court reversed Justice Nyangulu’s decision. In that case, the Supreme Court made some very important pronouncements with regard to customary affairs in Zambian traditions.

According to the Supreme Court, even if customary practice mostly favored a Mwamba as the automatic successor to Chitimukulu, the decision of the Bashi Lubemba was final with regard to whether Mwamba would become Chitimukulu. For Justice Silomba, “the Bashi Lubemba have the final say over who takes over as Chief Chitimukulu and are not restricted to the system of ladder climbing and seniority.”[iv] Essentially then, the Bashi Lubemba are the custodians and the courts of law should not replace their customary advice and input. Fundamentally, it is the Bashi Lubemba who make Bemba chiefs.

The Bashi Lubemba are important in making the Chitimukulu because they comprise both the rulers of the Chiefdom and the priests of the chiefdoms. The Bemba royal house strikes a balance between the ruling clan (Abena Ng’andu) and the ritual priests (Bakabilo). A Chitimukulu can only succeed in leading the Bembas if indeed she has the blessing of the ritualists. Royal birth does not automatically entitle one to being Chitimukulu; it must be supplemented by the approval of a clan different from the Abena Ng’andu. It is in this vein, that the decision from the Bashi Lubemba should be respected.

President Sata’s original decision to dethrone Sosala as the Chief Mwamba was that Sosala had not followed proper ritual procedure. The problem here is that the President even if as a Bisa does have an interest in the Bemba chiefdoms, does not have expertise to advise the Bemba royalists about what that ritual procedure must be. President Sata is president of our republic; he is unfortunately not an expert in ritual practices of the Bemba peoples, even if he belongs to the greater Bemba commonwealth. Indeed, if the Bashi Lubemba are wrong in their choice, it is not for President Sata to make that call.

In fact, there is precedence where a white Catholic priest, Father DuPont, acceded to the throne of Mwamba with full approval from the Bemba royal household. As far as tradition is concerned, it is what the Bashi Lubemba decide that should carry the day with regard to matters of succession. If indeed, the Bemba royal household had erred to have Sosala as Chief Mwamba, President Sata could not unilaterally decide to reverse such a resolution.

Leaving the Sosala and Mwamba saga aside, the recent decision of the Bashi Lubemba to recognise this same Sosala as Chief Chitimukulu makes things even more difficult for President Sata. Sosala has several things going well for him. First, he was the substantive Chief Mwamba chosen by the Mwamba royal household, and secondly, he has become the choice of the Bashi Lubemba to be the next Chitimukulu. With these two going for Sosala, President Sata is in a serious quandary as to what he would do next.

For sure, there is no dispute between any competing pretenders to the Chitimukulu throne. The choice of customary practice, going by Justice Nyangulu’s test favors Sosala and so is the supremacy of the Bashi Lubemba (going by the Supreme Court test). This being the case, President Sata in combating the Bashi Lubemba will quickly realize that a Cobra cannot quite win if it fights the Crocodiles. Abena Ng’andu with their colleagues the Bakabilo, in the Bashi Lubemba, will shame the Bisa Cobra, again.

© 2013, E. Munshya wa Munshya, LLB (Hons), M.A, M.Div., For more information about our articles please visit http://www.eliasmunshya.org.

I should disagree with The Post, The ACC and the PF with the way s.22 of the Electoral Act read with ss.104 to 107 is being interpreted.

Ultimately, the advise of the Solicitor General that the PF should attempt to ask the High Court to interpret these laws seem to be appropriate. Nevertheless, I just do not foresee a situation where the High Court will rule that any nullified election on the basis of corruption or illegal activity will lead to barring of the respondent for 5 years.

Had the framers of this law contemplated direct barring, they would not have inserted the phrase that the High Court should send a “report” to the ECZ. I am of the view that, the sending of the “report” to the ECZ imposes upon the High Court to act, firstly, judiciously on this point. Secondly, it imposes a duty upon the High Court to consider the degree culpability. It should only be in those situations where the candidate is gravely culpable that the High Court should issue this “report”.

The other matter to be considered concerns the punishment contemplated by this Act. Indeed, since the punishment contemplated here will result in proscribing the participation of a person in the democratic process of our republic, it should follow that only morally culpable individuals should be barred. Participation in elections, both as candidate and as a voter is a fundamental peripheral of our democracy. It should take very exceptional circumstances such as criminal convictions or stuff like that to bar a Zambian from participating in elections.

That being the case, we should await the ruling of the honourable High Court on this matter. But I seriously doubt, whether the High Court will agree with M’membe, or with the ACC or with Hon Wynter “One Party State” Kabimba.

Leave Dora Siliya alone.

By E. Munshya wa Munshya

Mr. Terry Musonda, a spokesman for the judiciary of Zambia has issued a statement in which he purports to clarify the issue that has engulfed our nation in recent days. The issue has been whether a respondent in an election petition, whose seat gets nullified, by the High Court should also, by strength of the same judgment, be barred from re-contesting that seat.

Before Mr. Musonda’s press statement, several stakeholders had given their position on the matter. The Law Association of Zambia (LAZ) had issued a statement to the effect that without a report from the High Court instructing the Electoral Commission of Zambia, the ECZ cannot on its own bar any candidate from contesting. The ECZ itself had issued similar statements stating that according s.22 read with ss 104 to 107 of the Electoral Act (2006), the elections body could only act after it receives a report from the High Court specifically addressing these matters. In the absence of such reports the ECZ cannot bar any candidate.

I had written earlier, supporting, the ECZ position. I had also indicated that indeed with regard to s.22, there are two situations under which a candidate could be barred. First, it could be through a conviction for electoral corruption and secondly, through a report from the High Court specifically made for this purpose. The Patriotic Front, however, with their Secretary General Mr. Wynter “One-Party State” Kabimba have piled even more pressure on ECZ to block these candidates from re-contesting their seats.

By raising these issues, the Patriot Front has been targeting MMD’s Dora Siliya, Mtolo Phiri and Maxwell Mwale whose seats where nullified on account of electoral corruption and other illegal activities. Indeed, all these candidates have varied degrees moral culpability with regard to the nullified elections.

The purported statement from the judiciary signed 8 August 2013, by Mr. Terry Musonda makes no legal sense at all. President of the Law Association of Zambia, Mr. James Banda, has been swift to condemn this press statement and to declare that this statement does not have the force of law and as such should be ignored. For the following reasons, I would agree with LAZ.

First, Terry Musonda has overstepped his mandate. The mandate of a spokesman for the judiciary is an honorable one. It includes the duty to run the public relations department of the judiciary. It must be mentioned here that the role of such an officer is to be the support staff to the judiciary in general and specifically to all the players within that system. The judiciary does not just comprise the Supreme Court but rather the whole hierarchy in our court system. The spokesman serves these men and women who serve in the judiciary. Among other things, Mr. Musonda should be looking at ways to interact with the public and with the media. His mandate does not include making pronouncements that border on constitutional and administrative law. In that role of spokesman for the judiciary, his role does not extend to serving as a judge or as a court.

Second, Terry Musonda has a very unbalanced view of the role of the High Court and indeed the Supreme Court with regard to elections. As a support officer, and not a principal judicial officer, Mr. Musonda should have exercised restraint not to bloat out a clear misunderstanding of the High Court’s role. Obviously, he misses a few things over the judiciary he purports to be speaking for. In our system of government the Judges play several roles. Their primary role is that of being judges or adjudicators. Their courts have inherent jurisdiction to resolve legal matters brought before them. Additionally, judges have a statutory legal role as well.

However, in addition to this judicial role, several judges do have an administrative role to play within our democracy. For example, when the Chief Justice serves as the returning officer for presidential elections, he is not doing so in his judicial capacity (constitutional law) but in his administrative capacity (administrative law). In the same way, the Electoral Act 2006 grants the High Court some administrative duties to make a report on illegal practices it finds during a petition and send that report to ECZ for further action. Terry Musonda cannot say that this administrative role has been overtaken or superseded by the judgment of the Supreme Court. When the Supreme Court hears an appeal of a petition, it is doing in its judicial capacity. However, it still remains within the administrative capacity of the High Court to make the report to the Electoral Commission of Zambia if the High Court deems so.

If Terry Musonda meant that the Supreme Court rulings did in fact, curtail the administrative role of the High Court in delivering these reports, then he is insolently mistaken. Just where he got the idea that Supreme Court ruling invalidates the power of the High Court to issue these reports is a mystery perhaps that can only be resolved by asking midnight oil he burnt when he crafted this badly written statement.

Third, Terry Musonda then goes for the overkill by stating the obvious. It is true that the Supreme Court rulings are binding on all. But it is not only the Supreme Court rulings which are binding. In fact, strictly speaking it is the rulings of the High Court which are binding unless challenged by the Supreme Court. The issue here was not that any one had been disputing the ruling of the Supreme Court. There was no such thing. Mr. Musonda dreamt up this matter and decided to include it in his statement at midnight.

A very senior member of the Zambian High Court chairs the Electoral Commission of Zambia itself. Deputy Chief Justice Ireen Mambilima as chairman of the ECZ is very aware of the nuances that Terry Musonda seems to be instigating in his press statement. The thought that a commission chaired by his boss could not understand its true mandate is indeed scandalous.

Fourth, Terry Musonda, is commenting on some issues that are subject of a court action. This does not appear too well that a non-judicial officer is making pronouncements on some matters that are before a competent judge. Musonda need reminding that while the judiciary is an institution, the legally binding declarations of the judiciary are not press statements, but rulings of a competent court. Regardless of how Musonda thinks of himself, he is not a court and in fact, the judiciary he is claiming to represent is not the court of law. There is nowhere where anyone refers to the ruling of the judiciary. We always refer to the rulings of the courts. And so Musonda is wrong to the extent that he thinks that speaking for the institution of the judiciary gives him license to comment on matters that can only be handled by the competent court.

That being the case, Mr. Terry Musonda and officers like him do have a role in our institutions. These institutions can only run effectively if support staff are raising good standards in administration. As for this particular episode, Mr. Terry Musonda should be ruled offside. Or may be we should say his boss the honorable acting retired Chief Justice has gone beyond offside and what she really needs is red card. Her game should be over.

(c) 2013 – Elias Munshya, LLB (Hons), MA, Mdiv., is not a member of the Zambian Bar. For specific legal opinion readers are advised to consult members of the Zambian Bar.

 By E. Munshya wa Munshya

It is common knowledge that the battles of succession for Patriotic Front leader President Michael Sata are now being fought openly. The vultures are not trying to hide anymore. They have come out in full force, making their intentions known. They are also trying to amass as much a following as they can get. The most significant episode in all this kerfuffle has been an acknowledgment by Geoffrey Bwalya Mwamba that there are Riffraffs within the Patriotic Front that are fighting very hard to win these battles of succession.

GBM could be right. Indeed a rule by riffraffs is the greatest injustice any country can endure. However, in as much as what GBM has said is right, he has misstated where the problem is. Indeed, Zambia should be concerned not that riffraffs are trying to succeed President Sata, but rather that riffraffs are actually ruling with President Sata now. As such, our greatest concern should not be that they would rule tomorrow, but rather that these riffraffs are ruling today. The challenge for all Zambians is to ensure that these riffraffs do not destroy our country.

Intra-political battles are not uncommon. In fact, going by our history, Zambian ruling parties do face bitter intra-party battles within two years of acquiring power. In fact, the reality that the PF has not even had a splinter group in the 2 years it has been in power is itself quite unusual.

Going back to 1964, after Kenneth Kaunda’s United National Independence Party (UNIP) had obliterated its opponents in the January elections, there was some satisfaction among many UNIPists that the time had arrived for them. In fact, Kaunda’s success in Barotseland bolstered his position in negotiating for the Barotseland Agreement of May 1964. Had Kaunda or UNIP lost in Barotseland, that agreement would not have probably materialized and Barotseland could have in fact, negotiated a more politically amicable settlement than what Kaunda offered them. However, within 2 years of power, UNIP faced so many power struggles that it all came as a shock to Kaunda. The fact that some agitators were in fact, his close friends was quite unusual. UNIP faced problems with Kaunda’s legitimacy – many of his friends still felt that he was a Malawian charlatan ruling over a country that was not his. Some UNIP stalwarts were further concerned that Kaunda preferred to appoint his fellow Malawians to positions in government. The fact that he had gone ahead to appoint Reuben Kamanga as the first vice-president of an independent Zambia did not help matters either. The other problems that faced UNIP were tribal. Kaunda later learned that the “One Zambia One Nation” slogan he had slammed down the throat of Barotseland was not going to work. UNIP members of parliament and other Barotse senior UNIP leaders had chosen to side with Barotse regional interests. Within 2 years of power, the formidable UNIP was losing the plot. It had to take serious dictatorial tendencies for Kaunda to keep UNIP together. He expelled several Lozis from UNIP and one time sent his closest collaborator, Sikota Wina, to the Lozi king to warn him that the UNIP government was going to rule over Mongu and sideline him by force.

UNIP’s succession and intra-party fighting continued until 1973 when at the recommendation of the Chona Commission, Kaunda disbanded all political parties and entrenched UNIP as the sole political party. After, 1973 every one had to be a forced member of UNIP. Those who thought they could succeed Kaunda faced serious backlash. These included Simon Mwansa Kapwepwe. Kapwepwe was a non-conformist who resisted UNIP’s one-party state until his death at the hand of UNIP vigilantes in 1980.

After the Movement for Multiparty Democracy’s successful routing of UNIP in 1991, it did not take long for internal divisions to emerge within the ranks and file of the MMD. While, Chiluba had shown himself to be an effective leader, he too began developing some dictatorial tendencies inherited from his predecessor at State House. This coupled with the fact that other powerful figures also wanted a share of that power further led to the destabilization of the MMD. Months into power, figures like Mulemba and Wina were not happy with the direction the nation and the party were taking. Even vice-president Levy Mwanawasa was concerned that power was getting too concentrated on Frederick Chiluba and his closest collaborators such as Michael Sata. It was Mwanawasa’s opinion that, in actual fact, his Cabinet junior and party inferior Michael Sata was exercising more power than him. The breaking up of the MMD was inevitable.

By 1993, a faction had left MMD. Emmanuel Kasonde, a senior MMD leader had also left the MMD. The Lewanika duo – Akashambatwa and Inonge had also left. The new party to fight the MMD was almost regarded as a more sectarian and regional party. It had to take the highhandedness of MMD Secretary Michael Sata to curtail the further spread of the National Party beyond Southern and Western Provinces. When Kasonde stood on National Party ticket in Kasama in the ensuing bye-election, the message from Sata was clear – Kasonde had sold out what should be a Bemba political hegemony to Nkumbula’s National Party. Kasonde was soundly defeated in that bye-election.

The MMD had been fractured and beyond 1993 the internal squabbles had taken its toll. Just like UNIP before it, the first two years of political power led to unprecedented internal divisions and “succession battles.”

In the case of the intra-Patriotic Front battles, however, several things are quite unusual. The case of the internal divisions within the PF does differ significantly from the UNIP and UNIP cases. First, President Sata does not seem to be in effective control of his party or his government. It does appear like the succession battles are a result of this lack of control more than anything else. In the perceived lack of adequate control it is like every one is doing as they please. It is now difficult to figure out who exactly is speaking for Sata. GBM for his part has made it categorically clear, that he is speaking for President Sata and that the actions of those battling for actions are “hurtful to President Sata.” Each time succession battles emerged in our history, the president was perceived as a central player within those battles. In the case of the Patriotic Front, however, the absence of President Sata is the defining element of these battles. This is quite unusual.

The second issue with the Patriotic Front is that it is a problematic union of people united only by perceived personal interests and greed. It is quite unusual that President Sata has managed to assemble a team that could not see eye to eye on many issues before September 2011. Isn’t it surprising that President Sata has given no official acknowledgment to President Frederick Chiluba and yet the first acts of power included promoting Chiluba’s assistant to become a Permanent Secretary in the PF government. It also quite surprising that former intelligence boss Xavier Chungu is a part of the same team now, as Fred Membe and Mutembo Nchito. President Sata’s team is a team of contradictions and absurdities. Assembling a team like this whose players seem to be so philosophically dissimilar is a prerequisite for disaster. The battles for succession will only grow bigger and fiercer– there are too many vested interests and egos.

The third issue going on within this succession debacle is just how the issue of tribe is working out. Wynter Kabimba’s hopes for success within the Patriotic Front lay with him finding a multi-ethnic bloc within. GBM on the other hand does not need that. The Patriotic Front is a Bemba party already, and so GBM does not need to do as much fighting as Kabimba. That being the case, President Sata has shown Kabimba that he would side with GBM no matter what Kabimba thinks of GBM. At the same time that Kabimba was persecuting Given Lubinda, the same tactics never worked on GBM. In fact, GBM emerged even stronger after he survived the Kabimba onslaught. GBM survived because when it comes to the real issues of power, President Sata would side with a Bemba relative more than the man from Shibuyunji. This is not strange. In fact, from our history, ruling parties have had a share of their tribal politics and the PF government now would be no exception.

Since GBM has endorsed President Sata for 2016, it is quite unusual to see the kind of condemnation he has received from the likes of Kabimba and even Guy Scott. In a quite dramatic move, even Matero Member of Parliament Miles Sampa stated that there was no need to make any endorsements for 2016. I find these criticisms to be misplaced. I think GBM is only being condemned because he has started to do something that his opponents would have wanted to do themselves. GBM has beaten them to this game. Instead of condemning him, they should just join in and do it. They are mostly riffraffs after all.

Conversely, the fact that we have riffraffs in the Patriotic Front is a no brainer. It is a party of riffraffs. And that should the concern of all. If I were to be concerned about what GBM said, and as I have stated above, I am more concerned about the riffraffs ruling now, than those who are hoping to rule after President Sata. As such, the battle for Zambia should not be left to the riffraffs in PF to duck it out, each Zambian should be involved by making it clear that Zambians will vote in 2016 and the vote should just be for a party more civil and more elegant than the riffraffs we have subjected ourselves to since 2011.

In riffraffs, we do not trust.

By E. Munshya wa Munshya

 In the run up to the recent Chipata Central by-election, Nkhosi ya ma Khosi Mpezeni actively campaigned for the PF candidate Lameck Mangani.[i] Nkhosi Mpezeni even appeared at a campaign rally addressed by President Sata where again he asked the people of Chipata to cast their votes for the Patriotic Front. As expected, the condemnation was swift from both the Electoral Commission of Zambia (ECZ) and from opposition parties. Some of the major arguments against Mpezeni’s political gestures were to the effect that the constitution forbids a chief like Mpezeni from participating in politics. This is drawn from Article 129 of the Constitution of Zambia which states that, “a person shall not, while remaining Chief, join or participate in partisan politics.” As for the ECZ, its desire to conduct free and fair elections meant that the Chipata electorate needed to be free from undue influence, especially that which comes from a traditional leader like Paramount Chief Mpezeni.[ii]

I wish to argue, that both Article 65 (3) & (4) and Article 129 in our constitution that seem to suggest that chiefs cannot express active political opinion has either been misunderstood or if not, it should be reinterpreted in ways that give effect to the constitutional liberties and rights that the chiefs, as citizens of Zambia, should enjoy. Indeed, if the interpretation of the said articles yields to the result that chiefs should have no political opinion, whatsoever, then these particular articles will deserve not our loyalty but our disdain.

With that in mind, a critical analysis of both Articles 65 and 129 yields to a clear conclusion that in fact, as the constitution stands, Mpezeni did not abrogate it by actively campaigning for the Patriotic Front. First, he did not stand for election as an MP. Second, he did not join politics, and thirdly he did not “participate in partisan politics.” Consequently, I wish to argue that as leaders, chiefs and other traditional leaders should be granted the freedom they need to freely express political opinion. This is good for democracy and indeed it is good for Zambia.

The idea that chiefs should not participate in politics is perhaps one of the greatest mistakes to come out of the 1996 amendments to the constitution of Zambia. President Frederick Chiluba and two of his closest collaborators Godfrey Miyanda and Michael Sata had pushed through constitutional amendments in 1996 whose main motive was to block some of their most vocal political opponents.

To block Kaunda, whose father descended from modern day Malawi[iii], the Chiluba-Miyanda-Sata triad decided to push an amendment that would require a presidential candidate to produce “a Zambian father and mother” (Article 34 [3] [b]). This was something that Chiluba himself could not, controversially, provide himself. It had to take the Supreme Court to correct this obvious glitch in the case of Lewanika and Others v Chiluba. Additionally, to block Mung’omba the triad pushed through another amendment. Article 34 (3) (f) would require any presidential candidate to have been domiciled in Zambia for 20 years prior to the elections. Dean Mung’omba, having lived overseas for much of the 20 years prior to the 1996 elections, could not possibly satisfy this requirement. However, to-date, the domicile rule has not been tested in court. Indeed, if Article 34 (3) (f) were to be applied then several politicians including Dr. Nevers Mumba would have been ineligible to stand in the 2001 presidential election.

However, the most relevant amendment to our argument here concerns that of the chiefs’ participation in politics. Article 129 eloquently stated that, “A person shall not, while remaining a Chief, join or participate in partisan politics.”

That Chiluba was going to stop KK from contesting in 1996 had become very apparent by the time the new constitution was being formulated. The problem for the Chiluba-Miyanda-Sata axis of power was that even if Kaunda were to be disqualified in 1996, there was a rising star within UNIP who was going to rise up to the task. As such, to ensure that UNIP would not provide any viable candidate to challenge Chiluba, Sata and Miyanda’s MMD the government decided to push through a provision that forbade chiefs from participating in politics. In 1996, Kaunda’s party vice-president was Senior Chief Inyambo Yeta, who just like KK, had become quite a robust candidate with enough clout to threaten Chiluba and his collaborators’ hold on to power. That being the case, it is clear that Chiluba’s government was not sincere in its decision to push through this amendment, especially that it was aimed at stopping Inyambo Yeta. As such, from history itself, it is clear that this article in our constitution was born out of seeds of injustice.

Each time we condemn an outspoken chief like Mpezeni from holding political views we assert this unfair chapter of our history. Each time we condemn a chief for holding and communicating political views we reenact a play designed by the political engineer himself. In fact each time we condemn Mpezeni, we play into a story that was hatched in 1996 by non other than Michael Chilufya Sata and his malevolent colleagues in the MMD.

Those who argue against traditional leaders’ participation in politics point to the leadership role that these chiefs play as leaders of their chiefdoms. However, traditional leadership should not and cannot be the barrier. In fact, upon close scrutiny this argument falls flat. According to the Chiluba-Miyanda-Sata triad, the main reason why it decided to proscribe chiefs from active politics is because “chiefs needed to be above politics as custodians of tradition”. In the present context, it would be expecting too much to expect that our chiefs should not be political when, in fact, the Chief of our State itself is a partisan demagogue. Indeed, the argument that chiefs should not proffer political opinions because they are above politics is unfair and a violation of their rights to speak and hold different and varied beliefs.

Zambia’s current Chief of State, Michael Chilufya Sata is a partisan political demagogue, why then should we expect any differently from traditional chiefs whose territorial influence is just a few thousand people at Mtenguleni or Sokontwe as the case may be? If we really meant to exempt traditional leaders from politics, on the basis that partisan politics is bad, then the president should have been the first to be exempt from partisan politics because as Chief of State he clearly does have a non-partisan role. However, that is not the case. President Sata is so partisan that one would wonder whether he could use the powers of the state to defend even a single member of the opposition if they were to be attacked by outside forces. This is the Chief of State who is daily singing about how he would deny state privileges to those people who do not vote for the likes of Lameck Mangani in Chipata, Livingstone or Kafulafuta. If it is all right for Sata to be a partisan demagogue, we do our traditional leaders great injustice by confining their psyche to a prison of conscience.

And in fact, today we could be condemning Mpezeni and tomorrow the same proscription could be used by those in power to muzzle political opinions of chiefs that are opposed to the Patriot Front and its one-party agenda. The berating of Chief Jumbe in the House of Chiefs by President Sata should send shivers to any well meaning Zambian. Surely if Jumbe is proscribed and threatened when he speaks out, it becomes apparent that the Patriotic Front agenda might soon land the whole country into oblivion. I want Mpezeni to vocalize his support for the PF, in the same manner that I do desperately want Chitimukulu or Jumbe to vocalize their disdain for this incompetent PF government.

In this regard then, we should perhaps answer a very momentous question. Given the provisions of articles 65 and 129 of the Constitution itself, does it in its current form forbid Mpezeni from supporting a candidate of his choice? The ECZ says the constitution forbids Mpezeni. I hold otherwise. It is my submission that a strict reading of this provision does not contemplate to forbid a chief from expressing political opinions. Indeed, this article forbids chiefs from being candidate in an election and from holding a partisan political position. That being the case, Zambia might have overreacted against Nkhosi Mpezeni. He was not participating in politics and neither was he standing as a candidate. Mpezeni was only openly campaigning for the party of his choice – in keeping with the sacred rights of citizenry. He holds no party position in the PF and as such, it would be too onerous on our democracy to proscribe conduct, which is within his rights and liberties.

That being the case, we should then turn to the theory, advanced by some, that chiefs might influence an election in one way or another. From the Zambian experience since independence, there is no model that has been repeatedly rejected through empirical evidence than this theory that holds that chiefs do influence their subjects politically.

From history, evidence is scanty to support the notion that subjects are easily influenced by the political persuasions of their chiefs. Perhaps a little historical analysis might help shed some light. In the January 1964 elections, the people of Barotseland went against the wishes of their king to elect Kaunda’s UNIP. UNIP got 56 seats while Nkumbula’s ANC won 9.[iv] The idea that the people of Barotseland would vote a certain way due to the political persuasions of their king was proved wrong that January. In the 1991 elections, Chief Mporokoso was the UNIP candidate for Mporokoso Constituency. His candidature did not in any way mean that his subjects would automatically vote for him. In fact, it was one of his subjects Ackim Nkole who beat Chief Mporokoso by a wide margin. As recent as 2011, it was no secret who Mwata Kazembe was supporting in Mwansabombwe. However, the subjects of the Mwata did not succumb and instead overwhelmingly voted Sata and the PF. Perhaps we should in this case include numerous examples in the Southern Province where the people of the South turn out to vote for UPND even when their chiefs’ preferred candidates and party is the MMD or the PF as the case may be.

Indeed, if there was any doubt about these fears, the recent example should settle the matter. In spite of a spirited campaign by Mpezeni, the people of Chipata voted for the MMD. Therefore, the theory that chiefs should not hold political views because they will unduly influence their subjects does not survive close scrutiny.

That being the case, it would be in the interest of our robust democracy to give back chiefs their voice and their heart. Indeed, chiefs should be free to express themselves and to make known what they believe in their hearts. A constitution therefore, that muzzles the voice of chiefs need revision.

Having established, above, that subjects do not necessarily support their chief’s preferred political candidates or parties, it would be a mistake to think that these chiefs’ personal popularity fluctuates according to these political views. This is an area that in fact might need further study. In spite of voting or supporting candidates opposed to their chiefs, most subjects nevertheless still hold their chiefs in very high esteem. This does seem to suggest a disconnection. Subjects could still respect a chief as their traditional leader and yet not let that respect spill over into any significant political influence. The examples I have given above might need a little elaboration. I explain below.

After the 1964 elections, Kaunda mistakenly thought that he could then interfere with the Litunga since the people of Barotseland had in effect rejected the Litunga’s preferred party. With a landslide in Barotseland, Kaunda never expected what was to come. Once he had perceived the Litunga’s weakness, KK wanted to pounce and humiliate Mwanawina II. Winning an election is one thing, but disrespecting a chief is quite another. Kaunda’s maneuvers backfired when within a few months he lost very influential Lozi members of his UNIP. He quipped in anger that the “Lozis had decided to align themselves to their tribe and their chief rather than the country and his UNIP.” This model has been confirmed in other chiefdoms as well. No one should perceive differing political persuasions between the chiefs and their subjects and think that they could exploit it to their political advantage. It always backfires. Even after the obvious MMD preference of the Mwata Kazembe, he has escaped unscathed from this support. There has not been any backlash for his backing of the losing MMD. He remains chief and a very well regarded and respected at it.

As for Mpezeni, he might have expressed his opinions the way he did. But the MMD should not for a moment take it to mean that they can then exploit this weakness to their political advantage. The same people who voted for MMD in Chipata would if they see Mpezeni attacked still come to his defense. Mpezeni is their king after all. And apparently, anyone who fights a chief might as well be prepared to get some backlash from his subjects, even if in actual political currency, the result could be the opposite.

In the interest of democracy Mpezeni, using slang, should be given a break. And as the idiom says we all might just need to “cut the Nkhosi ya ma Khosi some slack”. Our democracy is dependent upon free opinions expressed by its people, and these people include their royal highnesses. Both Jumbe and Mpezeni should be encouraged rather than dejected in communicating their political persuasions.

 Join me on twitter and let us continue the conversation. My twitter handle is @munshyamunshya.  

E. Munshya wa Munshya

The beauty of Zambian democracy is that no president in Zambia holds a monopoly over political players be it in the ruling party or in opposition. In fact, Zambian democracy manifests itself greatly in the personal ambition of various political players. Without personal ambition, democracy would lose its value and we could quickly slip back into a one-party or one-man participatory democracy. As such, it is the personal ambition of various political players that gives fuel and impetus to the fight for democracy anywhere.

It is in this light that the current squabbles in the Patriotic Front should be seen. These are not fights just for the sake of fights. These are fights for control, fights for power. Clearly, the fights serve notice to the current president that no one will succumb to blind loyalty to him. It also serves notice to the future of Zambia that this nation does not lack men and women who are willing to present themselves as potential leaders of this country. It is in this spirit of competition that our democracy can be mostly nurtured and matured.

That being the case, why then should these squabbles be good for Zambian democracy? Several reasons should be provided as an answer to this question. The PF squabbles provide a test for Zambia’s leader. In fact, all of Zambia’s presidents have had to deal with such squabbles at some point in their leadership. Kaunda’s post-independence honeymoon ended abruptly when several Lozi politicians revolted against his political leadership in 1965 and 1966. For his part, Kaunda did something about this and was a present player into the problems that had engulfed both his UNIP party and the nation. Kaunda provided leadership during these squabbles and he was not ambivalent towards the problems. He fired the troublemakers and started to make efforts at winning back the Lozi constituency. These efforts paid off handsomely when at the party convention of 1968, the Lozi constituency bounced back into the realms of UNIP.

In addition, towards the end of Kaunda’s rule, several squabbles broke out. The most significant was when Enoch Kavindele decided to challenge Kaunda for the presidency of UNIP in 1990. Kavindele showed some ambition. And with the power of ambition intact, the garden of democracy shall forever be watered.

Just after winning the presidency in 1991, Chiluba also faced the greatest test of his leadership. Senior members of the MMD, unsatisfied with the course he was taking, started to grumble. However, the greatest squabble that defined Chiluba’s first year in office was the one between his highest ranking cabinet members: Miyanda, Mwanawasa and Michael Sata. Particularly, vice-president Mwanawasa felt that his cabinet juniors, with clear knowledge of President Chiluba, were sidelining him.

It was not long after that, that Chiluba took control of the situation and publicly forbade his cabinet members from “laundering dirty linen in public.” However, there was no way Sata and Mwanawasa were going to work together. Their differences were irreconcilable and a few months after these public spats, vice-president Mwanawasa left cabinet citing Chiluba’s decision to side with Sata as one of the reasons.

From this saga, one thing is clear: Chiluba took control of the situation. He was also visible throughout these problems and he showed his preferences in the whole thing. Chiluba decisively took sides in the matter. These are the elements lacking in the current spats within the current ruling party. President Sata is absent from the squabbles going on in the ruling party. This behaviour from a president is highly unusual and notwithstanding any potential problems arising from division, the president’s silence might be the greatest undoing. President Sata might pay a heavy political price for this sloppiness and ambivalence.

The people of Zambia did not vote for Kabimba. Zambians did not vote for Membe. Zambians did not vote for GB Mwamba. The man in power is Michael Sata and in moments like this, Zambians expect the president to show up and lead the way. Squabbles shall always be there, but so should be the president.

Therefore, if you have squabbles without clear leadership from a president you plant seeds of ambivalence that would stifle the growth of democracy. By now, President Sata should have taken a firm stand against these public spats. He should also have fired some of these people. Both Kabimba and GBM cannot be right. President Sata should be able to tell which one of the two is causing the problems. with this knowledge, President Sata can then fire the problem maker so that they could form a political party or something to that effect. Such a faction formed out of these squabbles would help test our democracy further. For sure all these squabbles will make any one including president Sata to have no illusion that Zambians could be taken for granted.

Had there been no divisions and squabbles within the MMD or UNIP, we would not be where we are today as a democracy. Just look at the Zimbabwe situation, without personal ambition of political players shady characters like Mugabe would continue to rule way into his 100^th birthday. ZANU-PF stalwarts have shown no ambition, and no initiative in trying to remove the tentacles of this dictator. Loyalty has in Zimbabwe planted seeds of a brutal dictatorship. As for Zambia, things are different. Zambian political players do not have the same amount of loyalty exhibited by their Zimbabwean counterparts. In Zambia, most cabinet ministers do not see themselves as mere servants of a sitting president. Most of them see themselves as potential successors to the president. It is this ambition that keeps democracy alive and prevents the growth of a personality cult for a president.

If there is anything we can take from GBM’s public differences with Kabimba, it is the fact that Zambia is bettered by these differences. But in order for Zambia to benefit even more, President Sata must wake up and show leadership.

What good is a cobra if it cannot bite?

By E. Munshya wa Munshya

On Tuesday, 3 September 2013 Justice Mungeni Siwale Mulenga ruled in the case in which Dora Siliya and others had sued the Attorney General and the Electoral Commission of Zambia for banning her and her friends. The media outlets have ably reported that Dora Siliya and her friends have won. Justice Mrs Mulenga reversed the decision of the Electoral Commission of Zambia and instructed the electoral body not to bar Siliya and her crew.

A detailed analysis of the issues to do with this case is beyond the space and scope of this article. That being the case, there are a few “take-aways” from this ruling.

The fact that the judiciary has faced tremendous criticism about its partiality has been very well highlighted in the past few weeks, if not months. In fact, I have written in this column the need to have a new face at the helm of the judiciary. It has been my position that the Acting Chief Justice Lombe Chibesakunda is very compromised due to the fact that she does not satisfy the requirements of the constitution to be appointed to that position. She is passed retirement age and parliament has refused to ratify her.

The so-called judicial press statement, she caused to be written, by Terry Musonda has only gone to show just how partisan Madam Chibesakunda is. I will return to this matter later.

Madam Chibesakunda’s majority holding in the case of Mutuna and others v. Attorney General also demonstrates an insane amount of judicial partiality and political sycophancy on her part. It seems that Mutuna was not decided based on law, but based on other political considerations. Remarkably, Chibesakunda in that case went to state that the Zambian president is the “authority on everything.” That statement is, for lack of a better term, total nonsense. In a democracy like ours, there should be no place for a judge to hold that the president of Zambia is the authority on everything. This nonsense is more apt for the days more barbaric than ours and for a generation of Kaunda and not this generation of the third republic. All well meaning Zambians should reject such paternalistic innuendoes.

Additionally, in the face of such brazen judicial confusion prompted by illegally appointed Chibesakunda it, therefore, is exciting to have a judge like Mungeni Siwale Mulenga who sees through the façades and redeem the face of the judiciary. It is judges like Mulenga who offer hope to the current judiciary. In fact, without these judges, the judiciary would have already turned into a congregation of kangaroo courts presided over, not by kangaroos, but by dinosaurs.

Justice Mulenga took the issue of Terry Musonda’s press statement head on and made it very clear that this statement not only lacked juridical value, but also was wrong to purport to have been issued in the name of the judiciary. The statement was void “ab initio”. She equally took issues with the purported letter authored by the deputy registrar of the High Court of Zambia. In her own words Justice Mulenga stated:

“I have deliberately placed the word ‘judiciary’ in inverted commas as it is not apparent on the face of the press statement and the letter which Courts or offices comprised the Judiciary whose opinion was being advanced”.

And then Justice Mulenga goes to make perhaps one of the most profound statements that should serve as good law for the future. She stated on page J38 of her opinion that,

“in the history of the Judiciary in Zambia, there has never been occasion where the institution has given interpretations of the law through press statements”.

This judgment does seem to highlight some ineptitude on the part of Zambia’s attorney general. I am of the opinion that looking at his performance and legal analysis, Mumba Malila could perhaps capture the honor of being Zambia’s worst attorney general. I just wonder why President Sata had to call him back after his murky performance under the Mwanawasa government. In stating that Malila is inept as Attorney General, this should not be misconstrued to mean that I do not think that he is sharp and intelligent. In fact, reading through Malila’s academic writings before he became attorney general you get the feeling that you are reading a modern human rights lawyer who is aware of the consequences of judicial action. However, this is not reflected at all in his work as attorney general. One would wonder why the same Malila who was a passionate human rights lawyer would a few years later decide to defend perhaps one of Zambia’s greatest anti-human rights legislation: the Public Order Act.

In the present case of Siliya, Malila does not appear to be forthright. His objective was to have the case dismissed even before a hearing was conducted. In the preliminary issues he raised, Malila argued that the statements from Terry Musonda, from Priscilla Isaacs and from Wynter Kabimba should be ignored absolutely. He claimed, that these “were mere statements with no legal force” (p. J20). He does not end there, however, he even goes on to claim that Dora and others could bring him back to court after the by-elections are conducted even without their participation. He seems to want to keep his cake and eat it too.

On one hand, he claims ECZ was right to bar the candidates, and then in the next minute he argues that in fact, whatever statements were issued by Terry Musonda and Priscilla Isaacs did not have legal value. This is a classical case of cognitive dissonance at its best.

And then of course, hilariously, Malila claimed that the ECZ statement and that of Terry Musonda were of a general nature and did not specifically name any of the three applicants: Dora, Maxwell and Hastings. Here, the learned attorney general seems to be acting like a bully at Chabanyama Primary School who refuses accountability because he had not “named any names”. This was a very lame reason to say the least.

But Justice Mulenga was very vigilant. She ruled against all the three preliminary issues Malila had raised. Honestly, it would be futile to only entertain Dora after the ECZ has already had elections in Petauke.

Malila’s behaviour should not be surprising though. Zambia’s worst brain drain has nothing to do with professional Zambians who have migrated to other countries. The worst brain drain in Zambia happens to well-educated professionals after they acquire political power. As such, you wonder where the legal and human rights brains disappeared to in Malila after he became Attorney General of Zambia.

This judgment has also helped to clarify electoral laws. For example, Justice Mulenga has had to decide on the right standard of proof needed when the High Court is issuing the report about a petition in connection with s.104 of the Electoral Act 2006. It is clear that according to the case of Lewanika and Others v. Chiluba, the Supreme Court reaffirmed the standard of proof needed in an electoral petition. The standard of proof is somewhere between the civil standard, the balance of probabilities and the criminal standard of beyond reasonable doubt. However, when it comes to issuing a report about a corrupt candidate within the meaning of s.104, the standard of proof needed has got to be closer to the one needed in a criminal trial – beyond reasonable doubt. Justice Mulenga, rightly, rationalizes that due to the penal character of the “report” it is important that guaranteed rights are protected and that only those who are morally blameworthy should be barred. The standard that meets these objectives is none other than the standard of beyond reasonable doubt.

Indeed, it would be a great injustice to bar a candidate from voting for five years and from contesting elections for that period only on the basis of the standard of balance of probabilities. When the consequences of evidence would result in serious impairment of one’s constitution rights, the interests of justice demand that a higher standard of proof be adhered to. The sanctions envisaged in s.22 and s.104 are “grave and penal hence the need for the requirements to be strictly followed”, she wrote in her opinion.

Additionally, the High Court report is not automatic. According to Justice Mulenga,

“the mere fact that the High Court nullifies an election based on corrupt or illegal practice does not in or of itself constitute guilty report of the candidate whose election was nullified.”

To comply with the law, Dora Siliya was going to go back to the courts and have the courts institute proceedings aimed at issuing a report to bar her. But this process should be done in a judicial manner.

For now, it looks like the Electoral Commission does not want to appeal this ruling any further. They have complied and announced 10 September 2013 as the nomination dates for Petauke, Malambo and Mulobezi. And in all fairness, let these by-elections be fought before the people and not before the courts of law.

Disclaimer: This post is not intended to convey legal advice. Those in need of specific legal advice should consult members of the Zambian Bar.