E. Munshya, LLB (Hons), M.Div.

President Lungu in exercise of his power has appointed a Mr. Likando Kalaluka as Attorney General of the Republic of Zambia subject to parliamentary ratification. This last week, a parliamentary committee met to scrutinize the appointment. It has been common practice that the committee would invite submissions from the Law Association of Zambia (LAW). The LAZ is a statutory body created to regulate the legal profession. More than that though, LAZ is also a “fellowship” of some kind that advocates for lawyers’ interests.

LAZ Vice-President Linda Kasonde presented to the committee what she stated to be the LAZ’s position over the appointment of Mr. Kalaluka. According to her, the Council of LAZ (which is a highest management committee) would not support President Lungu’s nominee. On close scrutiny, it has emerged that she might have presented to parliament views that are at most not representative of the Council of LAZ. There is doubt about whether indeed what Ms. Kasonde presented are the views of LAZ.

Ms. Kasonde in her submission to parliament did rightly state Article 54 of the Constitution of Zambia and the role of an Attorney General (AG). An AG is an ex-officio cabinet member and principal legal adviser to the Government. Government in this case includes all the three branches and their subsidiaries. The qualifications for appointment to the office of AG are that the candidate must be qualified for appointment as Judge of the High Court. This means that for a person to be appointed as Attorney General they must have been member of the Zambian (or any other commonwealth bar) for at least ten years.

Linda Kasonde – LAZ

Being Attorney General also comes with some bells and whistles: the AG on appointment becomes a “leader of the Zambian Bar”, and gets automatically conferred with the “status” of “State Counsel”. The most ridiculous aspect of Ms. Kasonde’s submission to parliament showed itself in the way she mistreated the subject of “State Counsel”. According to her, Mr. Kalaluka does satisfy Article 54 of the constitution to be Attorney General since he has been practicing for the past eleven years. Nevertheless, she feels that Mr. Kalaluka cannot be appointed AG because he does not have the necessary experience and respect to be a “State Counsel”. I must respectfully differ with Ms. Kasonde here. She conflates issues. In fact, she uses very selective and at most wrong law and authorities from other commonwealth jurisdictions. Mr. Kalaluka is not being appointed to be State Counsel, he is being appointed to be Attorney General. The test, therefore, that he must meet is not the test for State Counsel, but rather the test for Attorney General, which is ten years at the bar and “some respect”. In her submission however, Ms. Kasonde goes to use authorities that have to do with being conferred the status of “State Counsel” and completely ignores both convention and custom with regard to appointments of Attorneys General in the commonwealth. The authorities that Ms. Kasonde uses on Queensland, Scotland and British Columbia are irrelevant here. Here President Lungu is appointing a quasi-political officer known as Attorney General.

Perhaps a little tutelage can do for Ms. Kasonde. The role of Attorney General is a both quasi-political and political appointment. It is a politician (a President) who chooses the individual to be the principal legal adviser to government. This person as per constitution must have been a member of the bar for at least ten years. It so happens that this political individual appointed to be AG must be conferred the status of State Counsel as an auxiliary consequence of the political appointment. This role is not strictly a bar seniority position. It is a political process tampered by at least 10 years of experience.

If we went by Ms. Kasonde’s reasoning, then we must be using army procedure when electing a president since a president also becomes Commander-In-Chief of the armed forces. This is a ridiculous submission to say the least. When Zambians are electing a president, they are electing, not a soldier, but a civilian who after receiving the oath of office assumes auxiliary functions of Commander. The president of the republic becomes a commander, just as an AG becomes leader of the bar and gets conferred the status of “State Counsel”.

Ms. Kasonde mentions that Mr. Kalaluka is a man of integrity, he has good character but for his “lack of relevant experience” he would be suitable for office. Bo Kasonde might need reminding that these are the qualities we need in an AG: a person with good character and integrity. She also submitted that Mr. Kalaluka needed a “little more experience”. Isn’t this insulting? Kalaluka has been a member of the bar for eleven years. He has appeared in all levels of court. He has an LLB from UNZA and an LLM in disability law from Ireland. How then does, according to Ms. Kasonde, he not meet the requisite experience? All those who have been at the bar for over ten years should really question Ms. Kasonde’s thinking here. Today it is Kalaluka and tomorrow it could be anybody. I cannot possibly stomach this kind of reasoning from Ms. Kasonde.

Ms. Kasonde then alludes to the position that a group of State Counsel took over Mr. Kalaluka. According to her, several individuals currently holding this rank do not support Mr. Kalaluka. While I really do understand their concerns, I do not believe these concerns are fatal to a political decision such as this. They just do not want an eleven-year call to join their ranks. But these lawyers need to separate their own sectarian interests from the whole. State Counsel are advisory and are consulted from time to time, but they do not make decisions for the Law Association of Zambia. And yes, as AG, Mr. Kalaluka would become a leader of the entire Zambian bar including these very State Counsel, but that is a political role. A republican President, who otherwise has never even held a gun, does by virtue of the political office become a commander of all the guns held by our armed forces. It would be ridiculous if soldiers objected to this and stated that they would only “respect” a Commander-In-Chief who knows how to shoot and kill the enemy.

Munshya wa Munshya

In making the discussion above, I have made it clear that the sentiments that Ms. Kasonde purported to present to parliament were actually her own. I am skeptical if these sentiments are indeed representative of the LAZ Council. To this I must now turn. The current term of the LAZ Council comprises sixteen members: President Chisanga, Vice-President Linda Kasonde, Secretary Likando Kalaluka, and members Mr Mwenya, Mrs. Yangailo, Mr. Mwitumwa, Mr. Lisimba, Mr. Tafeni, Mr. Muyatwa and Mr. Dzekedzeke. Others are Mr. Mwiche, Mrs. Kateka, Mr. Banda, Mr. Mwitwa, Mr. Sikaulu and Mr. Chulu. Apparently, the Council must meet regularly to make decisions on day-to-day decisions for the LAZ. Once a republican President nominates an Attorney General it is general practice that the nomination is given deference. LAZ does routinely support these appointments. As for Mr. Kalaluka’s appointment, however, it seemed to be a little complicated. Obviously, Ms. Kasonde convened a LAZ Council meeting but they could not form a quorum. So she innovated to have the meeting vote by “e-mails”. According to her letter sent to all members of the Zambian bar, the vote went as follows: Mwenya, Tangailo, Mwitumwa, Lisimba, Tafeni, Muyatwa, and Dzekedzeke were in favour of having Mr. Kalaluka as AG. The following voted “no”: Kasonde, Mwiche, Kateka, Banda, Mwitwa, Sikaulu and Chulu. This means that the vote was a tie, seven were for the resolution and seven were against the resolution. After noting that the vote was a tie, Ms. Kasonde decided to use a very controversial provision in LAZ rules to vote again (twice) so as to break the tie. And she voted again against the resolution to support Mr. Likando Kalaluka. There is a lot to be said about this controversial provision (SI 155 of 1996).

From this voting pattern, I have some questions, and please indulge me. As you can see from the foregoing, the president of LAZ Mr. George Chisanga decided not to vote. He abstained. Mr. Kalaluka too was asked not to vote because he was the subject in the proceedings. It appears to me that Ms. Kasonde should have recused herself as well since she obviously was patently against Mr. Kalaluka. She shouldn’t have voted twice. Having regard to all these issues, I am of the view that this “e-mail” voting was patently unfair and appears not to have been a correct reflection of the sentiments of the members of the LAZ Council. Controversially, I am shocked that Ms. Kasonde went ahead to make presentation to the parliamentary committee inspite of the obvious confusion inherent in this process.

Another disturbing pattern of the vote is that mostly, it is Bemba names that were against the resolution. I do not want to accuse the Bemba members of the LAZ Council to be tribalists, but they might need to explain this. How come it is Kasonde, Mwiche, Kateka, Mwitwa, Sikaulu, Chulu and Banda that are against Kalaluka? Did tribe play a role in this? Interestingly though, Mr. Kalaluka’s CV we have obtained seems to indicate that his languages are English, Lozi and Nyanja. Conspicuously missing from this is Bemba! Interesting. Nevertheless, Bemba-speaking citizens of our republic need to really create a space where we can in unity discuss this idea that we are the centres of this nation while others are only but peripheral. And going by the voting pattern, I call upon our people to realise that merit should not include “tribal” merit. As an Aushi, I must state here it is not in the interest of our shared Bemba commonwealth that we should as a people become insensitive to the interests of other citizens. Zambia is for all Bembas as well as Lozis. President Lungu nominated a Lozi citizen of our republic to be our government’s chief legal adviser, it is only right that we give great deference to this nomination.

Mr. Likando Kalaluka has satisfied all the requirements for appointment as Attorney General of Zambia. I appeal to our parliament to ignore the submissions given by Ms. Linda Kasonde and ratify this appointment. There is a lot of work to do, and the sooner Mr. Kalaluka starts the better! As for Ms. Kasonde, she perhaps might need to read a little more about what obtains in British Columbia, Scotland and Queensland about Attorneys General, and not just about “State Counsel”.

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Here are the two documents Ms. Kasonde submitted to parliament and a letter she wrote to the LAZ Council after using their name to attempt to derail Mr. Likando Kalaluka’s nomination. Judge for yourselves.

LAZ SUBMISSION ON THE APPOINTMENT OF AG

LAZ MEMORANDUM ON APPOINTMENT OF AG 18.03.15

E. Munshya, LLB (Hons), M.Div.

The wisdom of the ages is strikingly clear. According to Pope Celestine I, “we are deservedly to blame if we encourage error by silence.” The manifestation of tyranny is always subtle. Oppression, no matter how heinous, usually does have trifling beginnings. Those who end up being oppressors frequently never plan to. They become tyrants by the deafening silence of the disaffected. When the state acts to violate the inviolable rights of its citizens, it usually does so by abusing legitimate legal power. State violation of human liberty, is rarely about whether the state has the power or authority to punish the wrongdoer but about the processes followed when punishing such a wrongdoer. It doesn’t matter the motives of the state, if its actions have the effect of eroding constitutional liberties we must as a people hold such a state to lawful accountability.

President Lungu

To keep good order in our republic, security agencies must be allowed to use force, but this force must be reasonable. The nature of humanity sometimes calls for the use of force more often than satisfies our comfort. The Zambian state has a legitimate interest in ensuring that those that live in Zambia, citizens or otherwise, follow the law in the conduct of their personal affairs. To keep the peace is a sacred duty of citizen and alien alike. However, if peace is threatened, or if criminals begin abusing the peace of our country, then the security agencies are justified in taking appropriate and reasonable action to redress the harm. The key here is that force must be both “appropriate” and “reasonable”. The use of police power should be balanced by a respect for constitutional liberties. It is these constitutional liberties that act as a milieu in checking the abuse of state assets. Our constitution stipulates what the state can do and cannot do when it is using force. Police cannot just begin shooting thieves on the streets; neither should they mount roadblocks anywhere and everywhere.

In Zambia’s constitutional structure, bullets and bombs held by our militaries cannot be triggered or activated without consent from our elected politicians. Patience is the virtue of force. Bullets have no minds of their own. Bombs would love to boom, but before they do, the decision to have them explode must be made by rational civilian representatives. Soldiers, paramilitaries and all the forces in our country are under civilian supervision for political accountability. The Zambia Police and the Zambia Immigration are accountable to our elected officials, and the elected officials are, in turn, directly accountable to the civilian population. To abuse the military, the police or the immigration officers is an insult on the revered integrity of the Zambian people. Zambia is a democracy; it is not a military dictatorship and neither is it a police state. Both the President of our republic and the Minister of Home Affairs are directly accountable to the people in the way the security forces deploy force. There is no such thing as absolute freedom, just as there is no such thing as absolute state power. To deviate from our democratic system is to invite danger and court trouble. After defeating the Kaunda dictatorship in 1991, our people should not accede to the return of despotism.

Police Inspector-General Stella Libongani

In meeting a legitimate state objective, Zambia’s department of Immigration and Police over the weekend raided a church service and detained its worshippers. Congregants of the Swedish Pentecostal Church were to be released only after they showed their immigration status. Apparently, the police and the Registrar of Societies had been closely watching this church. Listening to the immigration department spokesperson, you would see that the state did seem to have a genuine objective in trying to stop illegal immigrants. But this is only but a part of the story. The state as, I have mentioned above, has a duty to be reasonable, proportionate and sensible in the way it deploys force. What is offensive with the action of the police is the chilling effect that such operations have on the constitutional liberties of the people. The Zambians’ freedom to worship is sacrosanct. Sending armed police to a church service is disproportionate and, at worst, unjustifiable in a democracy. Couldn’t the state have found a better way to address the illegal immigrant problem than raiding a church while a service is occurring? A typical church service in Zambia doesn’t last more than four hours. Couldn’t the police have waited until the service was over?

Munshya wa Munshya

The police command have a choice about how they will use their arresting powers. The police power of arrest or detention is not a demon that manifests at an inappropriate time demanding a knee-jerk reaction from officers. It is not an uncontrollable beast that can only be tamed after it has drunk the blood of its victims. Rather, the power to arrest is to be deployed in such a way as to accord and respect basic liberties of the people. Respect for basic human liberties makes legal state action lawful; any disrespect for liberty makes legal state action unlawful. If the police have a choice between arresting people before, during, or after a church service, both common sense and law demand that they do so in a way that is least disruptive of constitutional liberties. The police must be sensitive to what we hold dear as a Christian nation. Church services are cherished by the soul of this nation. There is absolutely no justifiable reason, no existential threat, which a church service poses that should justify a paramilitary invasion. To say that the police can follow crimes wherever they want, whether it is in a church or otherwise, is plain nonsense. The police are constitutionally constrained in the use of power. They can’t just show up anywhere and everywhere in the name of policing. They should not just enter any church and disrupt a service on the pretext of arresting illegal immigrants. Immigration officers cannot just be detaining people simply because they have a legitimate reason to do so. It is liberty that gives legitimacy.

If a church service of the Swedish Pentecostal Church is not respected today, there is no guarantee that a mass celebrated by the Roman Catholic Church will be esteemed tomorrow. I request President Lungu and his cabinet to direct the police to delicately balance the use of force against the constitutionally enshrined respect for religious expression.

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Suggested Citation:

Munshya, E. (2015). Liberty Defiled: President Lungu must stop police from invading church services. Elias Munshya Blog (www.eliasmunshya.org) 10 April 2015

E. Munshya, LLB (Hons), M.Div.

Truth is the greatest antidote to error. The pain of truth is far more desirable than the comfort of lies and deception. It is better to build a continent or nations on a foundation of truth than try to build a people on false assumptions. For many years, Africans have been trying to live under a false conjecture that they are a united people. The pressure to try and appear to be united manifests itself in the senseless penchant for blood. What we see in South Africa today is terrible. But it is not new. Africans all over the continent have been butchering each other like senseless beasts. We must not pretend like South Africa is the only problem. The very foreigners being butchered by South Africans have been butchering one another in the countries they come from: Somalia, Congo, Rwanda, and Eritrea to mention a few. An answer to the problem of Xenophobia in Africa requires some honest soul-searching. It must demand some analysis, some deep questions. We must earnestly abandon, the false philosophies of a “united” people and adopt a worldview that is more attuned to African realities.

Munshya wa Munshya

Just a few months ago, the people of South Sudan, fresh from independence, started to slaughter each other. The Angolan government has taken an anti-Congo stance that is so ridiculous that it has led the Ba Kongo people into a senseless xenophobic hatred between those that belong to Angola and those that belong to the Congo-Kinshasa. In the 1990s, Katanga governor Kyungu wa Kumwanza introduced the kuba telemusha doctrine in which the Luba-Kasai were ordered deported from Katanga so that they could return to their native Kasai region. The Bemba-speaking peoples of Katanga were among the people groups that participated in this ethnic cleansing. To date, Wa Kumwanza has not answered for his crimes. In Cote D’Ivoire, there is always a tension between northerners and southerners and between those that believe are genuine Ivorians against those believed to be of foreign origin. We have no space here to mention the struggles of Rwanda and Burundi. As for Somalia, the country remains ungovernable today due to the various warlords that have each claimed a chunk of the capital and the territory. In fact, someone has observed the more ethnically homogenous an African society is, the more likely it is to face serious political instability of murderous proportions. In Central African Republic, the Africans are killing each other, tribe against tribe, religions against religion, and vice-versa.

Cecil Rhodes is the patron saint of Pan-Africanism

To address the issue of all this xenophobia, Africans must adopt new ways of thinking. The philosophical underpinnings and aspirations of the African continent must begin shifting. Africans must give up the burden of trying to be united. They must admit that they are diverse and different. The aspiration of being “one and united” people has created such a psychological obstruction for the African mind. From the time Cecil Rhodes proclaimed a united Africa from Cape to Cairo, Africans have not given up on this Rhodesian dream. The African needs some truth. And acknowledging that we are not “one” is the first step to healing. We are different. We could have the same colour of skin, and live on the same geographical mass called “Africa”, but we must acknowledge that we are a divided and diverse peoples. This acknowledgement has got to be the new foundation upon which we could build new stories and narratives that would help rather than distract Africa. The more we tell each other that we are “one” people, the more conflicts we have. Let us give up this lofty dream that is so unrealistic. Let us accept and embrace our differences no matter where those differences come from. Diversity and difference is, to some extent, socially constructed. As such, it does not matter how we classify ourselves, once we acknowledge these classes it could be the beginning point for healing.

President Zuma

After we acknowledge how different we are from each other, we must then, ask ourselves, how should I treat the person who is different from me? Should I kill another simply because they are different from me? Does “difference” provide me with a reason to kill another? There is power in “difference”, regardless of how we have come to conceptualize that difference. But the acknowledgement of difference must submit to higher values. And these values have more to do with how I handle the person that has been labeled or the person I have labeled as different. We need a philosophy of hospitality: an attitude to the strangers.

We need to realise that people do not need to become like “us” in order for them to escape our killing. The problem in South Africa is not the “us” problem, it is the issue to do with how different South Africans should treat the many different Africans, and how the many different Africans should treat the South Africans. Should they kill the other simple because she is the “other”? Africans need now embrace Post-Africanism. In Post-Africanism, we are not afraid to embrace difference.

As a post-Africanist, I am delivered from the burden of trying to push unity upon a continent that has never and would never be united. Instead, post-Africanism reaffirms the truth from Jesus Christ: “do unto others what you would love them do unto you”. Post-Africanism acknowledges the diversity of the African peoples. It sees this diversity as a strength not a weakness. It sees tribes, nationalities, and shades of blackness as a true strength of the African peoples. Post-Africanism then challenges these different peoples, to treat each other with utmost respect and love for the other. Doing so is truly liberating. You are no longer trying to force unity. You are no longer trying to disingenuously claim “oneness” with a people that are different from you. Instead, post-Africanism takes you towards hospitality. It makes you treat a Somali, a Bemba, a Xhosa, a Barotse, a Biafran, a Shangaan, a Kasai, just like you would want to be treated. It is this post-African hospitality that might just help and save Africans from butchering each other to extinction. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

E. Munshya, LLB (Hons), M.Div.

We all must congratulate the Seventh-Day Adventist Church of Zambia for its one-millionth baptism. Since its establishment in Zambia, the church baptized its one-millionth member in April 2015. While this feat has not been easy, it has demonstrated the resiliency and faithfulness of one of Zambia’s most widespread churches. The celebrations themselves were politically marred by a miscalculation of who should have greeted whom, and who avoided greeting whom. But beyond that, the Seventh-Day Adventist Church must be celebrated and commended.

Members of the SDA can be found in business, politics, government, science, health care and other aspects of our national life. In spite of a very socially and politically active membership, what is really surprising with the SDA church ecclesial leadership is just how it has managed to stay apolitical and politically ambivalent in a nation that has increasingly blurred the church-state divide. Why is it that in spite of its political clout, the ecclesial leadership of the SDA has stayed above the political fray?

The role that the Christian churches have played in the life of Zambian nation has only come to considerable academic attention very recently. Perhaps due to Marxist philosophies of the first and second republics, Zambian academics did not pay much attention to the role that religion in general, and Christianity in particular, had played in the life of the nation. Unlike its neighbours, it is curious to note that Zambia’s first public universities completely ignored faculties of theology and religion. After the fall of Kaunda, however, the critical role that the church has played in the political processes of Zambia is now being taken seriously academically.

The academic study of church-state relations in Zambia has very frequently been evaluated mostly from the perspectives of the Roman Catholic Church (through the Zambia Episcopal Conference), the evangelical churches (through the Evangelical Fellowship of Zambia) and the other mainline denominations that are members of the Council of Churches in Zambia (CCZ). Specifically, when church-state relations are discussed in Zambia, they are often discussed in the context of how the political establishment has related to the Catholics, the evangelicals and the CCZ. At least three religious organisations have been ignored: the Jehovah’s Witnesses, the SDA, and the New Apostolic Church of Zambia.

According to Dr. Isaac Phiri (1996; 1998; 2001), the church in Zambia becomes more politically active to fill an occasional void left by a weak civil society. What drives the Zambian churches’ tone in their dealings with the state according to Dr. Phiri has got to do with whether there are other voices that are speaking for the population or not. If there is a vibrant civil society, the Zambian church does not routinely participate or interfere in politics. Dr. Phiri’s thesis could be true if applied to the political participation of the so-called mother bodies: the EFZ, the ZEC, and the CCZ. Dr. Phiri’s dissertation did not explore the reasons behind the apolitical stance taken by either the Seventh-Day Adventist Church or the New Apostolic Church. The SDA church does not concern itself with political matters even when there is a weak civil society, like other churches routinely do. We must investigate why this is so.

To be very clear, the SDA has been involved, very heavily, in providing solutions to the social-humanitarian issues affecting Zambians. They have erected schools, built hospitals, directed HIV/AIDS interventions and initiated several other initiatives. A few years ago, the SDA even established a university, now called Rusangu University. This goes to show that the SDA is quite aware and very involved in the social-humanitarian issues affecting Zambia. But what is lacking in the social-humanitarian stance of the SDA is the church’s complete apathy towards the political question. Why don’t SDA leaders use their numbers or political clout?

Politician and businessman Hakainde Hichilema is a member of the SDA church

Roman Catholics have undoubtedly openly used their political clout to influence politics in Zambia. The ZEC issues pastoral letters frequently. From the Kaunda days to the present, there is no doubting the political weight and influence of the Church of Rome. The noisy Pentecostals have made their clout felt as well. With the new phenomenon of the Major Prophets, Pentecostal preachers have acquired new levels of political outspokenness keen on changing the political landscape of Zambia through national and trans-national political “prophecies”. The same can be said of members of the CCZ. Member denominations of the CCZ have very frequently made their minds known about politics. What you will never hear is the political opinions from the SDA church leaders, why is it so?

Some answers to this question could be found from the central teachings of the SDA church. While the SDA’s 28 Statements of the SDA’s Fundamental Beliefs call for a church that is acutely aware of its evangelical, missionary and social-humanitarian mandates, there is no clear direction of how the church should respond politically within the 28 Statements.

The Seventh-Day Adventist Church

However, the official church document on church-state relations appears to address this political question quite adequately. It states the following: Adventists “must remain ever mindful of the dangers that are associated with religious influence on civil affairs and assiduously avoid such dangers. When Adventists become leaders or exert influence in their wider society, this should be done in a manner consistent with the golden rule.” The official document continues to state that the Adventists “should not, however, become preoccupied with politics, or utilize the pulpit or our publications to advance political theories”.

President Lungu greets Edith Nawakwi at an SDA event

It appears that the SDA church leaders in Zambia have followed the official church document on church-state relations to the letter. Their absence from the political fray has definitely been deafening. In spite of the temptation for the church to stray into the political arena, the leaders have exercised a lot of restraint. The official document does seem to suggest that the SDA church could speak out only if religious liberty is at stake. With one million members on its books, the SDA church has demonstrated that a church can exist and have tremendous political clout without having to fray into the political arena. There is more to church life than political involvement. If the Catholic Church and evangelicals have shown a more politically involved consciousness, it is fascinating to note the SDA model that has remained apolitical. Zambia is bigger and greater because of the religious diversity in the nation. In that sense, the SDA should be more than welcome to the table of our national conversations even if they will have nothing to say when the political dialogues get boiling.

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Suggested Citation:

Munshya, E. (2015). Converting 1 Million Baptisms Into Votes: An analysis of the political theology of the SDA Church in Zambia. Elias Munshya Blog (www.eliasmunshya.org) (7 May 2015)

E. Munshya, LLB (Hons), M.Div.

Munshya wa Munshya

The honorable Dr. Joseph Kasonde was born in 1938, his youngest counterpart in the legislature, Hon. Dawson Kafwaya, was only born in 1984. Between these two years is a spectrum of the ages of the current members of the Zambian parliament. Perhaps the most dominant myth to grace our politics in Zambia, is this persistent notion that “tired”, “old” and “finished” politicians rule our republic. This myth drives some of our youth to desire a political revolution that will usher in the “young” generation. There is no doubting that the Zambian population is very young. Our median age is 16. With a life expectancy of about 50, improving from the time we got serious with condoms, over half of Zambians are below the age of 20. At my age, I am older than about 75% of all Zambians. Some Canadians find it rather amusing when they learn that at my young age, I am quite a madala in Zambian terms.

The greatest threat to our national development is neither old age nor young-age, but it is theft, bribery, corruption and nepotism. It is ridiculous to think or even imagine that our senior citizens of our republic are the main reason why we are not performing well as a country. The call for a younger political generation is insufficient, by itself, to take us to the Promised Land. Zambia needs a balance of age so that the promise of youth is balanced by the strength of old age. Our problem really is not that we have too many old people in our politics; in fact, we do not have too many old people in our politics. We probably have very few of them.

When some Zambians demand for young people to take over our politics, it is important to define what “young” means and what is “old”. I will take it that all those born in the decade of Zambia’s independence are young, while those born before independence are “old”. If we used this as a mechanism, we will find that in actual fact, the Zambian parliament is relatively young.

Of all the 159 Members of Parliament in Zambia, I had age data access to about 132 of them. Only two of the 132 MPs were born in 1938: Alexander Chikwanda and Dr. Kasonde. They are both 77 years old. Members of Parliament born in the 1940s include: Wina (1941), Lingweshi (1941), Lungu (1943), Willombe (1943), Scott (1944), Kazabu (1945), Chanda (1946), Chituwo (1947), Kawandami (1947), Kaunda (1947), Limata (1948), H. Mwanza (1949), Kapaya (1949), Mooya (1949) and Phiri (1949).

Members of Parliament born in the 1950s are twenty-six. I will mention only but a few. Chifumu Banda, Mutale, J. Lungu, and Shamenda were born in 1950. They are 64 years old. Imenda, Kazunga and Luo were born in 1951. Kaingu, Yaluma, and Muntanga were born in 1952. Katuka and Chipungu were both born in 1953 while Simbyakula was born in 1954. Munshya, Muchima, and Lufuma were born in 1957. The following five were born in 1959: Mutati, GBM, Mwimbu, Matibini, and Matafwali.

Dr. Joseph Kasonde

From the figures I have presented above, only 43 of the 132 MPs, I analysed, were born before 1960. Contrary to some perception that we do have a lot of “old” people in our politics, a bulk of Zambian politicians are actually, 50 years old or younger. They were born after 1960. Specifically, fifty-five of the current MPs were born in the decade between 1960 and 1969. Thirty-three were born in the 1970s. Dawson Kafwanka of Solwezi is the only MP born in the 1980s. Born in 1984, he is the youngest member of the current national assembly. Additionally, Kafwanka is the only MP who does not meet the requisite minimum age to qualify as a presidential candidate. In Zambia a presidential candidate must be at least 35 years old.

Those born in the 1960s have the distinction of being politically vocal and controversial. Another analysis should be done as to why this is so. It is from this group where we find the most presidential aspirants. I think this is the group that feels like they are “true” Zambians mostly born after independence. Simuusa (1962), Lubinda (1963), Mukanga (1965), Nkombo (1965) and Kambwili (1969) have all been floated as possible presidential contenders. It remains to be seen how far this group will go. All of Zambia’s presidents so far, were all born before 1960: Kaunda, Chiluba, Levy, RB, Sata and now Lungu. Presidential contenders Hakainde Hichilema and Nevers Mumba were both born after 1960.

Members of Parliament born in the 1970s look like they will shape the future of Zambian politics. It is from this list where we have the likes of Cornelius Mweetwa (1976), Miles Sampa (1970), Harry Kalaba (1976), Levy Ngoma (1975), Dr. Chilufya (1972), Habeenzu (1973) and Vincent Mwale (1978). It is also quite interesting to note that ten youngest members of this present parliament are either ministers or highflying members of their party parliamentary caucuses.

Dawson Kafwaya

In addressing the age of MPs, we must deal with the longevity of individual MPs in parliament as well. Experience is important for an institution such as the National Assembly. The Republic of Zambia is only 50 years old, and yet most of the MPs we actually have in parliament have only been in parliament since the year 2000. In our desire to push for youth, we must not neglect the importance of institutional memory. Chikwanda was an MP for a few years in the 1970s and apart from him, no one of his current colleagues have that distinction. Our parliament is not only young, but it could also be short on institutional memory. Scott and a few others were MPs in the 1990s, but that is just about it.

From Kasonde to Kafwaya, we need to take our national rhetoric beyond the age of our politicians to asking important questions about integrity, values, and commitment to liberties. I really do not care how old an MP is, as long as they will not steal from the tax payers. Theft, and not age, is my greatest concern about politicians. And as one prophet said: “age aint nothin’ but a number.”

 E. Munshya, LLM, M.Div.

Hakainde Hichilema can be quite upsetting sometimes. Just when President Lungu is trying to settle in his presidency, there appears Hakainde Hichilema making it difficult for President Edgar Lungu to shine. Just a few days after an increase in the price of paraffin, petrol and diesel, HH took it upon himself to “rub it in” by going into our compounds and meet the people that are directly affected by the increase in fuel prices. Hakainde Hichilema’s message seems to be simple; he is going into Bauleni, Kanyama and Mandevu to try and explain to the people what his UPND party stands for and what it can do. He is also claiming that he is visiting compounds to get in touch with the alleged suffering of ordinary citizens. Doing so does seem to be a great effort on his part. He has to leave the incredible comfort of his multi-billion-kwacha house to visit with the everyday people.

Hakainde Hichilema 

Hakainde’s visits are quite damaging to the “Ifintu ni Lungu” government. In fact, regardless of who was president, it would still be hard and challenging for them. But unless HH commits a crime, he has every right to visit any compounds in our country. HH has every right to go to Milenge, visit Mongu, cycle in Chadiza, drive in Chazanga, or “gandula” in Katete. Zambia belongs to HH as much as it belongs to President Lungu. President Lungu does not own Zambia more than HH does. As such, it is quite ridiculous and absolutely unacceptable for the Zambia Police to use force to prevent HH and his sympathizers from going to meet with ordinary people in the compounds. With due respect to the Police commander of Lusaka, she was wrong to hold that HH needed police clearance to go to Mandevu. Actually, not even the Public Order Act gives police the powers to stop a citizen of our republic from visiting Chawama, Bauleni or Kanyama. Requiring police permission to go to SOWETO market belongs to the old and tired regime more barbaric than our times.

Lusaka Police Commissioner Charity Katanga

The said police commanding officer is not a typical “kapokola”. She is an educated young woman with academic and professional credentials that are an envy to many. And yet in spite of all these credentials she still went on to infringe the free rights of a citizen of our republic. Zambia is not a police state. Zambia is not a military state. We do not need permission from the security forces to enjoy the liberties of “amayendele”. I must appeal to the Lungu government to be reasonable in the exercise of their power. Just a few weeks ago, the Police and Immigration Zambia raided churches and disrupted worship services in the name of enforcing immigration laws. I objected to that action. Today, they are now stopping citizens from visiting compounds unless they have prior police permission to do so. We all should find such action to be absolutely unacceptable in a free nation. Abena Zambia tebasha iyo who need to check in with slave-masters before going to the market to buy tomatoes.

Democracy flourishes in an environment of voluntary competition. Politicians must market themselves freely. It is the people of Zambia who would ultimately pick the winner. While we can only have one president at a time, this should not be taken to mean that once a person becomes president, they must then infringe on the rights of others to aspire for the presidency. As long as Zambia remains a democracy, we shall always have people envying Plot 1. That is a fundamental issue we cannot derogate from. For people to wish they were in Plot 1 and for people to aspire for Plot 1, they must do so in a way that is both democratic and reasonable. As such, the police services should not be seen as hindering that natural democratic liberty.

Zambia isn’t a police state – Munshya

If we are saying that we are One Zambia One Nation, there is no better way to demonstrate our unity, than by giving space to each other. Even if it inconveniences us, democratic ideals must be followed to the letter. This is more reason why we should all express our displeasure at some innuendos from the ruling party that seem to suggest that Zambia should become a one-party state. Wynter Kabimba as Secretary General of the Patriotic Front several times intimated that Zambia was going to become a one-party state. But where is Wynter now? He is promptly head of a political party called Rainbow Party. I wonder what could have happened to the colours in his Rainbow had the PF remained the sole party in our republic. Just as we condemned Wynter then, we do condemn senior members of the PF who are currently promoting a one-party state. This perhaps could explain the reason why the police are so hard on Hakainde Hichilema. Is it a plot to usher in a one-party state?

Munshya wa Munshya

I believe very sincerely that Zambians do not want a one-party state. I believe that Zambians want to listen to all politicians so that they can make up their minds about whom to vote for. I believe that all this talk about a return to a one-party state is nothing but noisy hullabaloo that would lead to nowhere. I also believe that once we hold true to our promise of democracy we will find it appropriate to let politicians campaign freely without let or hindrance. I have great faith in the Zambian people. In next year’s election, the people of Zambia will be given another opportunity to choose a leader. This year, they went for Lungu. And I am one of those that supported Lungu’s candidature. This is how democracy should work. I trust the people of Zambia to make an informed choice about their future next year. In order to do so, the people of Zambia should be allowed access to Hakainde and to the many others aspiring for the presidency. Chaining HH just doesn’t make sense at all. The Police should respect the Zambian people to make informed choices about their future. We don’t need ba kapokola to make choices for us or to prevent us from making a particular choice. Long live our republic, and may God bless it faithfully.

E. Munshya, LLM, M.Div.

Kuli ba Kaunda, Intanshi mutende!

Kenneth David Kaunda

Munshya wa Munshya

The Faith of David Kaunda

Without burdening you further, Kanabesa, I would like to ask that you continue to pray for us. I have a few prayer requests to present to you. It is your wish that this nation continues subsisting in peace. You have also prayed that our country remains under the Lordship of Jesus Christ. Your speech is very similar to the discourse your successor Frederick Chiluba made when he declared Zambia as a Christian nation two months after defeating you in the 1991 elections. In fact, I am wondering whether you had a little help from Chiluba’s speechwriters.

As a father who fought for independence and ruled our country, your prayers have more gravitas than those done by the many foreign prophets who are ever so eager to drop a few lines about Zambia. So please, Ntambalukuta, pray for us.

• Pray for us so that we are delivered from the spirit of kaloba. Kanabesa, as things stand now, the destiny of this country is being mortgaged at a rate we have never known before. Very soon we are likely to be a Highly Indebted Poor Country (HIPC) again, if we continue this senseless nkongole. Please help us pray for our nation so that we get delivered from the spirit of shylocks.

• Pray for us so that we stop leaders from stealing. Our country has never lacked prayer warriors. We have plenty of them. In fact, by use of television satellites we have preachers beaming live prophecies meant for the president and his cabinet. More than just these prayers, Kanabesa we need deliverance from theft and corruption. Help us pray that President Lungu will not steal money from the treasury. Please help us pray that President Lungu, his cabinet and their children will not help themselves freely from the sweat of taxpayers. Kenneth Kaunda, pray for us.

• Ntambalukuta, you have declared great unity and freedom for Zambians. There is a demon we need deliverance from that is closely connected to your wishes. It is known as the “Public Order Act”. Kanabesa, I do not need to preach to you about it, because this is a spirit you know very well. In fact, you inherited it from the colonialists. You used it very well through your time as president. Your successor, Chiluba, also used it against you. The current president, and your son, Bo Lungu is still using it greatly to curtail the free exercise of constitutional liberties. Bo Hichilema, another of your sons, cannot visit Milenge or Kanyama without a police permit from Bo Libongani. Please pray for us, as this is unacceptable. I hope you too will realise how unjust it is for Zambians to get permits to visit Bauleni.

• During the 2015 Good Friday weekend, police futilely invaded church services in Lusaka searching for “illegal” immigrants. We protested against this action. Please pray for us that President Lungu will respect constitutional liberties, particularly the freedom to worship the Lord to whom you have dedicated this country. Arresting illegal immigrants while they are worshipping is an abuse of state power.

I have a lot of prayer requests, Kanabesa. But for now, let me end here and continue working for the great future of this country you founded. In a little way, by asking the presidency to adhere to the rule of law, I feel like I will be making real your wishes and your prayers for a greater Zambia. Ntambalukuta, pray for us.

Naleka nine,

Munshya wa Munshya

Ntambalukuta

E. Munshya, LLM, M.Div.

There have been reports that single mothers are having a hard time obtaining National Registration Cards (NRCs) for their children due to the demands by some registration officers for details of the father of those children before they are issued NRCs. The Non-Governmental Organisation Coordinating Council (NGOCC) has rightly observed that such demands by some registration officers are not only illegal but also disenfranchise a generation of voters. While it is true that it is only a few registration officers guilty of these illegalities, I believe that even if we had one case, it would still be one case too many. In modern Zambia, there should be no reason why mothers should be denied to register their children simply because they do not or cannot supply the details of the father of those children.

Edith Nawakwi

I do believe that some registration officers could have fundamentally misunderstood our current laws. According to our current laws, both the mother and the father are equal before the law as far as the family is concerned. Women are no longer legally subservient to men. As such, the father is not legally more of a parent than a mother is. Any woman who is a mother or guardian of a child has all the rights that a man who is father has over that child. These rights include the ability to obtain NRCs for their children. As such, for NRC officers to demand that a mother produces a letter or proof of paternal parentage goes against the current law.

According to the ruling of Lewanika and others v. Chiluba, a National Registration Card does not confer Zambian citizenship. The card merely registers Zambian citizenship. That being the case, when interpreting who and how should one obtain an NRC we must go to the constitution and find out how one acquires citizenship. Children born of a Zambian father or mother become citizens of our republic. In the case of women, it really does not matter the citizenship of the man who made them pregnant. A Zambian woman, who bears a child fathered by a Malawian, transmits Zambian citizenship to that child. When the time comes for the registration of that child, the mother could go to the NRC officers, swear an affidavit and have that child obtain their NRC.

Perhaps the most significant case that dealt with this issue is Nawakwi v. Attorney General (1991). Let me restate some facts. Ms. Nawakwi applied for the renewal of her passport. That passport had endorsed in it the names of her two children born out of wedlock. When she had applied for this original passport, the NRC officials made her swear affidavits whose effects were to make her appear like a secondary factor with regard to her legal rights. At the time of renewing that passport, the NRC officers asked her to produce written consent from the fathers of the children and swear more affidavits to that effect. She refused and commenced legal proceedings.

The ruling of Mr. Justice Claver Musumali was clear. Zambian law should recognise single parent headed families. The demand by the Passport Office for a father’s consent was illegal and Ms. Nawakwi did not need permission from the biological father of these children to put them in her passport. Justice Musumali did not have choice words for the Zambian government. He stated:

It is not at all justified … for a father to treat himself or to be treated by the institutions of society to be more entitled to the affairs of his child/ren than the mother of that child or those children.

Musumali then rightly declared, “the mother is as much an authority over the affairs of her child/ren as the father is.” These words from the Nawakwi case are powerful to shatter any doubts from a few NRC officers who are blocking women from obtaining NRCs.

Munshya wa Munshya

I must then add another dimension to this discussion. Zambian peoples are quite diverse. Patrilineal tribes in Zambia derive inheritance and the family tree through the father. Matrilineal tribes, on the other hand, derive inheritance and the family tree through the mother. With such diversity, it is ridiculous for NRC officials to insist on the identity of fathers only at the expense of mothers. To be clear, matrilineal tribes do not have family names, in the same way, as patrilineal tribes do. In patrilineal tribes the practice is that all children are given the last name of the father and that name becomes the family name or the surname, as the case may be. It is this last name through which “patrilineals” can know their clan and their family tree. In matrilineal tribes, this is not the case as the last name of a person has very little to do with the clan or the family tree to which that individual should belong. For example, patrilineal families from the East could sustain the last name of “Jere” derived from the father. That Jere name in fact could go on to tell you the clan of the person. It is not so among “matrilineals”, since you cannot tell someone’s family tree simply by the last name. The family tree and clan are derived from the mother. So in Luapula, there is no such thing as “Munshya” being a clan or family name, it is simply a name. For one to figure out a clan, they must ask the mother of Munshya. A last name in Luapula doesn’t mean as much as it does among patrilineal tribes. When obtaining NRCs, therefore, there is likely to be confusion when a mother from a matrilineal tribe shows up with her children all bearing differing “surnames”, even if they have the same biological father. This could be bewildering to NRC officials, but it shouldn’t. It is cultural reality for most of our people.

I appeal to all of our citizens, far and wide, women as well as men, to do the right thing and register their Zambian children freely and without fear. To the great women of our country, feel free to exercise the liberties afforded by your sacred citizenship to transmit it to your children without recourse to the men who made you pregnant. To the NRC officials, keep doing a good job, but for those officers who are unsure of the law, read Nawakwi again and let the women obtain NRCs for their children.

President Lungu greets Edith Nawakwi

E. Munshya, LLM, M.Div.

Chama Fumba’s “A Lungu Anabwera” is most likely defamatory, disparaging, insulting and slanderous. No matter how we spin it, stating that President Edgar Chagwa Lungu is a “clueless drunkard from Chawama who came with suitcases full of ‘Kachasu’” is, quite probably, defamatory. The problem is not really whether Chama has defamed, but rather what we should do about it. At the moment, the police in their usual unusual prudence have charged Mr. Chama Fumba with “breach of peace”. We will see how that pans out in court.

By plagiarizing Pichen Kazembe, Chama reminds us of the glorious days of Zambian (or is it Luapula) music. Kazembe made music at a time when musicians chorded authentic tunes playing real instruments. Unlike currently, where any person with a comedy crammed voice can computer-synthesize a beat without ever learning how to play an instrument, artists of old were really artistes, par-excellence. Chama and his group of present-day artists have a lot to learn from the likes Kazembe. Those were the days of Teddy Chilambe, whose song “bwesha umutengo” was a catalyst in the fall of the Kaunda dictatorship. At a time when Chiluba was mounting in popularity, P.K. Chishala had a different look at events and with his guitar chimed rhymes of nonconformity in “Common Man”. With Maiko Zulu’s “Mad President” and Chama Fumba’s “Bufi” we are almost assured that the tradition of doing political songs will continue, albeit now without the sounds of original instruments.

Chama Fumba as Pilato

Chama Fumba is obviously wrong in his exploration of “a Lungu ana bwera”. He uses the late Sata’s words to paint a picture that Movement for Multiparty Democracy (MMD) members joining the Patriotic Front (PF) are so wicked that they should not be brought any closer to this “a Lungu ba ku Chawama.” What Chama fails to acknowledge is that in actual fact, both the PF and the UPND are going after former members of the MMD to an equal degree. PF is welcoming MMD members and so is the UPND. To suggest otherwise is ridiculous. One of the MPs who signed as surety for Chama’s bail is an MMD member working very closely with Hakainde. The UPND has attracted many MMD members such as Maureen Mwanawasa, Mutale Nalumango, Canisius Banda, Maxwell Mwale, Katele Kalumba and many others. So the MMD blue chameleons are not only turning into green, but are also turning into red, Hakainde’s colour. How is it intolerable for “A Lungu” to welcome MMD members to PF and yet it is tolerable for Bo Chama Fumba’s UPND to welcome MMD members? This is a fundamental problem with the UPND, it condemns others for stuff that it is, itself, doing.

We all know that had it not been for Rupiah Banda, the PF would have lost the 2015 elections to Hakainde Hichilema. The unpopularity of the PF in 2015 was unfortunately, a consequence of the way the late President Sata ruled our country. The brave person, in fact, to articulate us that Sata was not such a stellar president is Chama Fumba himself in his lyrics of the songs “Bufi” and “Pilato na kateka”. Now that it is convenient for him, he uses the words of the very Sata to fortify his support for the UPND. So nomba, ba Sata ba wama?

In “a Lungu ana bwera”, Chama Fumba quotes Sata’s words about “inkondo kuba Lozi”. Here is a guy named Chama, using a Bemba named Sata, talking about “aba Lozi”. What is it that the great people of Barotseland have done to Pilato? Couldn’t he have quarreled with Lungu, without involving the Lozi people? The Barotseland issue is complicated. It is just so unfair to drag Lozis into fights that Bembas are fermenting with abena Chipata. “Inkondo kuba Lozi”, as used in Pilato’s song, is not a chuckling matter. There are some of our citizens in Barotseland that have genuine concerns over how Kaunda and his successors dribble them. Chama should be penning a song asking KK to correct the injustice he started rather than quoting Sata over this. Uku kudelela, aba Lozi.

Is Zambia a nation of “ba chakolwa”?

Having established how useless Chama Fumba’s song is, I must then turn to what we must do about it. We Zambians are really “chakolwas”. I do not, in any way, mean that we are all addicts to “Lutuku” or “Jameson”, but rather that we are hooked on a drug much more toxic than Kachasu. And this drug is known as “power”. The only way we know to deal with problems is to use force. We really are obsessed with guns, bombs and bullets. Kaunda “tatu fundile bwino” with our reliance on intimidation. To counter the baseless song from Chama Fumba’s Pilato character we went for the overkill. We sent police to go search for him. We used our powercoholism. We are powerholics in need of powerholics anonymous. I was taken aback by suggestions from the good people of our country that Chama Fumba needed to be silenced for this horrible song. Calling for Chama’s blood is hardly the best way to respond.

A lot of things were problematic under the rule of Michael Chilufya Sata, as Chama testified in “Bufi” and “Pilato na Kateka”. However, by going to court to assert his own private rights when he sued this newspaper’s editor for defamation, Sata left for us an example. A president of our republic who is defamed should enforce his private rights to sue the defamers. The use of force each time a president is defamed, is an act that should rightly belong to the old and tired regime of Kenneth Kaunda. In our democracy, we now have freedom to speak, and sing, some funny and foolish things. Police cells should not be the right place to correct human foolishness and naïve stupidity. If we respond by force to all manner of folly, we will be venerating foolishness unjustifiably. As Frederick Chiluba rightly put it: “imfumu taituka bantu, abantu ebatuke mfumu”.

I disagree with Chama Fumba, but I do defend his right to freely express his opinions, including out-rightly silly ones. And if the consequence of Chama’s “pakamwa” were that the defamed sues him for slander, I would support such a lawsuit. However, the use of force, police, and prosecutors should be reserved for stuff more felonious such as corrupt nolle prosequies in Lusaka, theft of bicycles in Malambo, or shootings in Mulobezi.

Munshya wa Munshya

Elias Munshya, LLM, M.Div.

Elias Munshya

President Edgar Chagwa Lungu has indicated that he will support dual nationality for Zambians. While we do not yet know the shape this initiative will take, it is important for us to support it. The last time a government tried to reform this area of law, it was severely defeated. Dr. Rupiah Banda of the Movement for Multiparty Democracy (MMD) tried his finest, but a combined bunch of Patriotic Front (PF) and United Party for National Development (UPND) parliamentarians shot him down. We must caution the current opposition MPs that shooting down dual nationality will not be tolerated by the Zambian diaspora. So we warn the opposition UPND and MMD to act reasonably and support this cause. The UPND should stop being a party of “no” for once, and do some growing-up by showing its willingness to support dual nationality. Dual nationality should not suffer as a casualty of any legislative mischievousness of the Lungu administration. Regardless of how much quarrelling they have to do with Lungu, the opposition should not play with dual nationality. Zambians have waited for this opportunity for a very long time. It is time for parliament to deliver.

At the heart of the dual nationality debate is the idea that Zambians who acquire a citizenship of another country should not lose Zambian citizenship. As the law stands now, immediately after one acquires British, Moroccan or American citizenship, they at that same second lose the privilege of Zambian citizenship. The only exception to this rule is a child. Children are allowed, theoretically, to maintain dual nationality, but must choose between Zambian citizenship and that other country’s citizenship after they reach 21 years of age. Otherwise, any adult Zambian who becomes a citizen of another country, automatically drops Zambian citizenship. This is ridiculous. It must change. It is unfair and it disadvantages Zambians, their economy and their socio-cultural progress.

Kenneth David Kaunda

A report suggests that many Zambians, in spite of assuming citizenship of another country, have still held on to Zambian passports and the Green National Registration Cards. As such, the current law as it stands, has created a nation of cheats. This should not be the case. A Zambian should not be made to choose between cheating and maintaining their Zambian identity. For once, the people of Zambia should be delivered from the desire to cheat to maintain nationality. There are credible reports that some of the ambassadors appointed in the previous PF regime were actually British citizens. If these reports are accurate, then we should safely say that even the most anti-dual nationality President Sata did not believe in the restrictions the law placed on Zambians who had acquired citizenship of other countries. So President Sata, in one breath, was opposed to dual nationality, and yet would in another breath appoint former Zambians to positions that only citizens could hold. It is time to remove the mask and officially adopt dual nationality. No need to live a lie. The most dramatic of these events is when Professor E. Clive Chirwa (a very educated Zambian) openly confessed on ZNBC TV that he, in fact, was a British citizen who nevertheless decided to drop British citizenship to resume Zambian citizenship. With more openness towards dual nationality, there would be no need for such intellectual gymnastics.

Michael Sata and Guy Scott

Dual nationality, in fact, should have been allowed right from independence in 1964. It was ridiculous that Zambia’s founding president, Dr. Kenneth Kaunda had to choose between being a Malawian and being a Zambian, as if these two concepts are mutually exclusive. It offends our common decency that in order to be a Zambian, Kaunda had to be forced in the 1970s to write the Malawian government renouncing that country’s citizenship he acquired by descent. What on earth would Zambia lose if Kenneth Kaunda were both Zambian and Malawian? By clinging to a purist definition of Zambian citizenship we have created and continue to create a nation of cheats. There are a good number of Kaunda’s Malawian contemporaries who were forced to find bogus villages on the Zambian side in order for them to qualify for Zambian citizenship. KK, however, couldn’t fake it because the story of his father is well documented. There was no need for some Malawians to have to find solace in fake Zambian villages. As a result of these post-independence lapses, we continue to suffer from an irrational and mostly neurotic suspicion of citizenship. How else can you explain an acting president called Guy Lindsay Scott probing Chagwa Lungu’s Malawian connections? Had we been more open to dual-nationality at independence, we wouldn’t have given opportunity to such “umulomo” in 2015. If someone went to probe the citizenship of Lungu’s aunt, all we would ask is, so what?

There is a good number of Zambians who should have been allowed to claim dual nationality of both Congo and Zambia as well. But no! Zambian citizenship had to be “pure”, and so was Congolese citizenship. The search for a pure Zambian led to dishonesty. Lambas of Sakania and Tshinsenda, or Lalas of Kachelo in Katanga, had to conveniently hunt for a Serenje or a Ndola rural village to justify their claim to pure Zambian citizenship. The same can be said of either side of the Luapula River. Africa had a false start as far as citizenship is concerned.

One Zambia Many Cheaters

The mistakes we made in 1964 should not be repeated. In 2015, we should let Zambians acquire citizenship of other countries without having to sacrifice their nationality. They can come back freely to invest in Zambia. The world has now become globalized, leading to the ease of both human and capital movements. If, peradventure, we forbade dual nationality for the fear that the Katangese and the Malawians will take over Zambia, this fear is really unjustified since the Katangese and Malawians have already done so! It is only right that we are more truthful about it.

Zambians are demanding for dual nationality without having to cheat to keep their sacred green NRCs. I just hope that we all will stand together as “One Zambia One Nation” with all Zambians, both home and abroad.

E. Munshya, LLM, M.Div.

From my upbringing as a child, to the present, I remain indebted to the nurturing I received as a member of the Pentecostal movement. I am forever grateful to my aunt’s church, which used to meet in a rented classroom at Chabanyama Primary School in Chingola. I learned to have faith in God. Pentecostalism’s greatest strength lies in its ability to help people believe that God is on their side, that he is working for their good, and that they will be used “greatly by God”. Critics of the Pentecostal movement miss an important character of the movement: its ability to create dreams and foster human imagination.

Even though the Pentecostal-charismatic movement has had a long history in Zambia, it remains only but a young movement. As such, just like any other movement, Pentecostals must have a conversation among themselves. They must create a dialogue. Unless we talk to each other, we might lose our impact. It is understandable that of all brands of Christianity, Pentecostalism is the closest to the African worldviews and mindsets. In fact, this is the reason why it is growing in Zambia: compatibility with African traditional religions and worldviews. It is this reality, taken together with current events in our movement that necessitate a reimagination of the Pentecostal theology of miracles.

Elias Munshya

A Pentecostal theology of miracles must be biblical. Simply quoting verses in the Bible does not necessarily mean that what someone is saying is biblical. It goes beyond that. The Bible must be interpreted as a whole. We must not just take a few verses here and there and make them suit our own explanations. We must look at it and let the Bible speak for itself. Those who teach the Bible, have a duty to rightly interpret it. From a biblical perspective, nearly each and every miracle Jesus performed was done to meet a need. Even when he was tempted to perform miracles as a show-off, our Lord resisted that temptation. It is to meet the need for social happiness, that Christ performed his first miracle, turning water into wine. Some preachers should refrain from purporting to perform miracles that have no semblance to meeting the immediate needs of the people.

A Pentecostal theology of miracles must have respect for human dignity. God loves people. God loves human beings. It is his love for human beings that he sent his Son to die on the cross. The idea that some prophets are using the anointing in ways that violate human dignity is repugnant to the Bible. It gives the good movement of Pentecostalism a very depraved image. We have seen it on video, where a preacher kicks into the tummy of a pregnant woman as a way of transmitting a miracle. Kicking a pregnant woman is a violation of human dignity and integrity. The practice of kicking people into miracles is indeed an innovation and departs quite significantly from the biblical imperative. Another video shows a preacher jumping on the bodies of people lying on the floor and is seen springing on the back and buttocks of a woman. The jumping on the bokosi of a woman is justified by the preacher stating, “all things are possible”. We cannot use the dignity of the anointing in ways that violate the integrity of people’s bodies. Regardless of how we spin it, kicking and jumping on bokosi does not add to the biblical cause.

A Pentecostal theology of miracles should be guided by common sense. Common sense is a gift of God. To say that God wants his people to discard common sense is actually nonsense. Faith does not mean we should abandon simple common sense. When Scripture says we can do all things, it is literally not “all things” that we can do. There are some things we should not do. While it is true that a barren woman can miraculously conceive, it is unbiblical to teach that the barren woman should get holy sperm from a prophet. Certainly, the statement that we can do all things has some limits. It is these limits that some in Pentecostal circles are daily blurring and expanding.

Being anointed is just one of the things that a successful church needs to have. In addition to the anointing, we need common sense and some exposure to an education. Education helps to preserve a revival. We can almost predict the future of any ministry by looking at their attitude towards people, towards common sense and towards education. It is through an education that you can know that the distinctions between “major” and “minor” prophets has nothing to do with the ranks of prophets but has everything to do with the size of a particular book in the Hebrew Canon. Isaiah’s book is “Major”, not because Isaiah is greater in rank than prophet Micah, but because Isaiah is a bigger book than Micah. Prophets Elias and Elisha never wrote a book, are they lesser prophets? Satan hates an anointed and educated people.

Some in our movement occasionally disparage education. Theological education is a frequent casualty. Ironic that some who oppose education go hunting for dubious honorary doctorate degrees and insist on being addressed as “doctor”. Leaders of our movement must go to school and stop the false security found in honorary doctorates. There is a good number who merits honorary degrees, but this should not be an excuse for the movement leaders not going to school.

I must state that only a few are spoiling the Pentecostal movement. Nevertheless, university campuses are now filled with educated and anointed Pentecostals, the future of our movement belongs to them. I know of a ministry started by a university graduate who is doing very well “winning souls” without resorting to magic shows. Genuine prophets and teachers are laboring in our compounds by spreading the empowering message of the gospel. Such need our commendation. Our movement is young. Our movement is growing. But it needs a conversation that is biblical, that respects human dignity, and has a dose of common sense.

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Elias Munshya is an ordained pentecostal minister. He served as lecturer and principal at the Grace Theological College in Lusaka, Zambia from 2001 to 2007. He holds several academic degrees from seminaries in Swaziland, South Africa, the USA and Canada.

E. Munshya, LLM, M.Div.

Regions are vital ingredients of our democracy. Without regional power and peculiarities, Zambian democracy would have long perished. The best way for Zambia is a heterogeneous political polity and a diverse confluence of various regional patterns and preferences. Instead of castigating regionalism, we must now, more than ever, embrace it and leverage it for national development. The issue should never be about destruction of tribes and regions, but rather equal respect for all and by all. And that includes respecting “cuundu chaitwa”.

Elias Munshya

While we were all intoxicated by the charm of Frederick Chiluba and his team of magicians in the 1991 elections, there was one region that stood firm against the Movement for Multiparty Democracy (MMD): the Eastern province. The Easterners did a “wako ni wako” and decided to stick with Kaunda’s UNIP. Those 25 seats held by UNIP in the east saved Zambian democracy. Those seats assured checks and balances in parliament. They provided a cushion. Had Frederick Chiluba won all the seats in parliament, we would have lost our democracy. In 1991, and years after that, Zambian democracy was saved because a region decided not to follow the whole country in the sweeping of change.

Shortly after the 1991 defeat, Kenneth Kaunda retired from active politics. However, he still had interest in the presidency and this interest became a great source of instability in UNIP. Kaunda finally returned to the helm of the ruling party. What ensued was a bitter political fight between Chiluba and Kaunda. The fallout was acrimonious. Kaunda decided to lead UNIP into the boycott of the 1996 elections. And with that boycott Chiluba accomplished what he had failed in 1991 – total control over all the constituencies and all the regions. The MMD’s control of almost all seats in parliament after the 1996 elections led to its natural consequence: Chiluba was going to be “wamuyaya”. He was now commander of the entire republic and as such, his lieutenants in the MMD started promoting a Third Term. He had reason to do that because he had the requisite numbers in parliament and there was no region and no party to hold him accountable. But then another region emerged.

After the 1996 elections, it is the rise of the United Party for National Development (UPND) that would help refurbish our democracy. In the ensuing by-elections between 1996 and 2001, the UPND swept all of them in Southern Province. With those wins in the south, Anderson Mazoka’s party was going to develop into a real national party. By the 2001 elections, it was the UPND which had become the biggest opposition party. It had a loyal region in the south and it has been so for many years. After the disappointing fall of UNIP after 1996, there was virtually no opposition of consequence until the emergence of Mazoka.

Cuundu Chaitwa

Having one party win all the seats in parliament, has not worked very well for Zambia. When Chiluba had almost all the seats after the 1996 elections, he began to contemplate the “wamuyaya” doctrine. When Sata’s Patriotic Front (PF) swept to power in 2011, the Secretary of the PF, Wynter Kabimba would be heard boasting that Sata and the PF should become the sole party. Kabimba saw the PF’s victory in 2011 as indicative of the fact that Zambians now wanted to have the PF as the sole political party. Kabimba’s one-party project flopped because, there was clearly one region that was not going to tolerate his nonsense: the Southern Province. Had the south not been an opposition stronghold it would have been easier for the ruling party to try and push through some undemocratic “wamuyaya” changes. Currently, Davies Chama the new Secretary of the Patriotic Front has also been heard stating that the Patriotic Front might as well be Zambia’s sole party. Indeed, it does appear like the PF is sweeping the East and if they make gains in the Northwest and Western, they are likely to command unhealthily large sections of parliament. The only real antidote to their venom is the faithfulness of the south to the opposition UPND.

In the Third Republic, the south has been a great blessing to our democracy without which we would have long gone back to the Kaunda days. So instead of feasting on our condemnation of the political behavior of the south, we all must be grateful that the south has remained a stronghold of the UPND. The UPND’s message is now seemingly resonating across the country and very soon the party might as well grow to become a ruling party one-day. I just hope that if and when it rules, there will be a region that will stand up and say no to the UPND so that we maintain great checks and balances. For now, the UPND and the south should continue holding the PF accountable. Doing so is a great service to the people of Zambia.

Zambia comprises regions, and tribes and a dose of diversity. We cannot have any one party dictate how all this diversity must behave politically. So instead of using the One Zambia One Nation as a tool of pretense and hypocrisy, we had better say thank you to regions that have not tolled that UNIPist line and have instead decided to exercise their democratic right differently.

Politician and businessman Hakainde Hichilema

Regionalism in Zambian politics will almost certainly bring political players to the table. It will ensure that no one party dominates the entire political process and take us to the abyss. Regionalism will help our country to truly devolve power to the regions and districts. Regionalism will prevent the people of Milenge from voting for a party on a promise that the party will build a bridge in Malambo. Regionalism will help us ask the question: if you need a vote from my region, what will you do for Milenge? It is not enough to get votes in Milenge and then disappear to take development to Mandevu in Lusaka. Lusaka is a region in Zambia but so are Mongu and Kazungula. One Zambia, many regions.

By Elias Munshya

This article appeared in the Zambia Daily Nation Newspapers. It is reproduced below.

It is another batch of by-elections and another kolopa.com of the United Party for National Development (UPND) by the Patriotic Front (PF). The PF has its own tactical and strategic blunders. They are, however, the ruling party and as such, they are getting some advantage of incumbency. There is still a lot of time to discuss what I have noticed to be serious glaring gaps in the PF overall strategy to date. I will defer that discussion to another date. Since the opposition United Party for National Development (UPND) is not the ruling party, it bears the greater burden of the two parties to show a strong strategy in the political process. If Hakainde Hichilema is to beat Lungu and the PF in 2016, he had better come up with a better plan. What we are seeing so far is a “chimbwi no plan” approach.

After losing to Lungu in January 2015, we thought that the UPND would critically evaluate its role and make some changes to its strategy. It is rather surprising that the party’s way of doing things has remained the same. It is ridiculous for the UPND to believe that it can use the same strategy it used before January 2015, and expect to win in 2016 and in between.

Weeks after this article was published in the Zambia Daily Nation, it appears that GBM might become UPND Vice-President at tomorrow, Wednesday July 22, press conference. We will come back with an analysis of what that will mean.

Hakainde Hichilema has left intact the same team that led to his loss. While the PF has made changes to their team, Hichilema has done nothing. The UPND needs some shake up. I do not advocate for the removal of Hakainde Hichilema, but HH must shake his team a little bit. It is now six months since the 2015 loss, and yet, he has not dared to make some strategic changes to his UPND squad. The only change to have taken place in the UPND was the resignation of Richard Kapita. But what the UPND needs is some deliberate retooling of its top leadership. Hichilema must bring in fresh blood such as Maureen Mwanawasa into the top UPND leadership. He could also need to look at the position of Secretary General of the party. I am afraid, the current occupant of this position has been ineffective and for a Chief Executive of a major party, he virtually is unknown. It is time to replace Chibwe with someone more vibrant. Maureen Mwanawasa would be a great choice for this job. She is strong, she is vibrant, and she is the real deal.

Hichilema must also move quickly to find a new vice-president to replace the departed Kapita and the current Canisius Banda. I have been of the opinion that the one to replace Kapita should be a Bemba-speaking candidate. Such a choice will help balance a key weakness perceived by a section of the population about the UPND. While empirically, the UPND is tribally balanced, there are some very loud perceptions out there that seem to suggest that it is a tribal party. Hichilema needs to manage those perceptions by wisely dispelling them. And by integrating a Bemba Vice-President, the UPND will be adding an important layer to dismissing such perceptions. UPND does not have a reality problem it has a perception problem. And in politics like everywhere else in life, perceptions matter.

Elias Munshya

During the January 2015 election campaign, we all thought that the golden era of the UPND had finally dawned. And the results showed a great showing of the UPND in nearly all parts of the country. But in order to win in 2016, the UPND will need to do even better in its non-traditional areas. It is rather surprising, that after the elections, all the politicians, particularly Bemba ones, have now abandoned HH. The question we are asking is, “why does HH fail to make these people stay”? So far, they appear like they support HH and the UPND but they have not done anything tangible to show that they are willing to invest their political capital in the UPND. The likes of Mucheleka, GBM, and Mutati all appear to be quite reluctant to commit. Without serious commitment from such politicians, the UPND will continue in its failure to move its narrative forward. We have, of course, seen HH appear with GBM. But in almost all instances he appears with GBM, they are either roasting michopo at the Hakainde mansion, or they are busy boogying to Pilato’s “Alungu ana bwera” at GBM’s extravagant wedding for his daughter. There is nothing wrong with two rich guys drinking expensive drinks and celebrating a daughter’s nuptials, the problem is with the perception that such activities bring. Instead of just being BBQ buddies, GBM should commit to the UPND, resign his seat in Kasama and do something more tangible for his newly found party. The time to do so is now. Waiting until campaign period opens up in 2016 might be too late.

Many Zambians still believe in HH. But HH must do more to show that he believes in himself. So far, he appears to be unsure of himself. He appears insecure and weak. The UPND team needs revamping. HH must do something more daring and take some risks. He is a rich businessman and he has learnt risk taking through his productive life as a businessman. He needs to translate that experience to the UPND. Change something, fire someone and bring in new blood. If GBM, Mutati and Mucheleka will not commit, HH should be decisive and shove them off for people that are actually willing to commit. There is just no time left. Beauty pageants should now be over. Time for roasting BBQs at the mansion is over. A team that is willing to work hard for HH must be recognised now and assembled quickly.

And just as a suggestion. HH can also try to talk to Nevers Mumba. It is obvious that Nevers’ talks with Lungu have failed. That should provide an opportunity for HH. Every one knows that the MMD under Nevers will not go anywhere because politics has changed to disfavor the MMD. But that is not to say that Nevers cannot be useful elsewhere. If Nevers cannot approach HH, HH should approach Nevers and try to make a deal, the one that could help the UPND in the long run.

HH at one time, did say that President Sata was running a “chimbwi no plan” government. However, the same can be said of HH now. He needs to show that he still has something more for Zambia; otherwise, it will be another kolopa.com in the next batch of by-elections and terrifyingly in 2016 as well.

By Elias Munshya, LLM, M.Div., M.A., LLB, B.A.

 Multi-party participatory democracy is deeply weaved in the very fabric of Zambian democracy. It should be an offence under the penalty of treason to undermine our democratic foundations fortified by the concrete beams of multipartyism. Zambians fought Kenneth Kaunda’s one-party participatory democracy because we knew the benefit that lay in having parties freely compete for support in the market place of democracy. Weak and sometimes inefficient as they are, political parties provide a primary platform to debate ideas and policies that strengthen our nation. In our constitution, presidential candidates must be members or should be sponsored by a political party. In parliament, our constitution recognizes the role that political parties play by crafting our democratic instructions in terms of the ruling party, the opposition party and other political parties.

Levy Patrick Mwanawasa

Parties are important for several reasons. First, they provide a platform to test political ideas and persuasions. Second, parties provide a platform to assess leaders, at least in theory. Third, parties provide checks and balances. If political leaders go against party policy, the party that sponsored them can always attempt to bring them into line. Fourth, political parties provide the restraint desirable in political players. Left on their own, MPs can grow brains and get into serious mischief. Fifth, political parties are smaller models of what national governance should look like. We should be able to look at how someone runs their political party to judge how effective or ineffective their leadership could be. Sixth, and most importantly, political parties provide a stage for political organisation, civic association and electoral mobilization.

Our constitution protects our multi-party system by putting in place mechanisms by which the party political system must be respected. A member of parliament, who resigns from the party that sponsored her to parliament, must relinquish her parliamentary seat (Article 71[2]). This is a reasonable system to ensure that political parties have a voice in the governance of the nation. Additionally, if an MP is not conforming to party policy, the party has the right to suspend or expel that MP. Party leaders should have the power to intervene, suspend and expel their erring MPs. That is the nature of our system.

The idea that MPs who go to parliament should be beyond the reach of party discipline is repugnant to me and certainly distasteful to our democratic system. Multi-partyism is the system we have chosen for our selves and we had better make good use of it. I know some people who hate political parties. Well, here is some news to such characters; the Zambian system is a party political system. We do partisan politics. We are a partisan nation. And that is well within the nature of our democracy.

It is in this vein that we must interpret the recent remarks by Geoffrey Bwalya Mwamba (GBM). On Wednesday 22 July 2015, GBM got appointed to the position of Vice-President of the United Party for National Development (UPND). However, he refused to step down as the Patriotic Front (PF) Kasama Member of Parliament (MP). Essentially, GBM wants to do a double tobela. He wants to be a Vice-President of the UPND while at the same time serving as a member of parliament for a different political party. The Zambian constitution forbids what GBM claims he is doing. By joining the UPND, he has lost the parliamentary seat, which he acquired as a member of the Patriotic Front.

Double tobela

Both UPND president Hakainde Hichilema and GBM know that they cannot hold on to a PF seat. I think though, that their words are some kind of a protest at the way President Lungu and his predecessors have wantonly ignored the sacredness of our party political system. Beginning with Levy Mwanawasa, presidents have unashamedly poached opposition MPs by appointing them to cabinet and then using them for partisan interests of the ruling party. In the case of Edgar Lungu, he has poached several UPND MPs, and in spite of legitimate protests from the UPND leadership and membership, Lungu has not relented in using these UPND MPs for Patriotic Front partisan business. Perhaps the most bizarre of these machinations was when Movement for Multiparty Democracy (MMD) MP Vincent Mwale served as campaign manager for a PF parliamentary candidate in the recent by-elections in which the MMD, which sent him to parliament, was supposed to participate. The idea that Vincent Mwale is beyond the reach of his principal Nevers Mumba is an affront to democracy. Equally, the idea that Greyford Monde should be beyond the reach of UPND discipline when it is the UPND that sponsored him to parliament is ridiculous. In fact, it is as ridiculous as GBM defiantly grandstanding that he has a right to be a PF MP when he has clearly joined the UPND.

Zambia United

Apparently, President Levy Mwanawasa started this deplorable practice. According to Levy, since the constitution says the President can appoint a cabinet from parliament, the president could appoint to parliament any MP she wants. Levy was both right and wrong. He was right that a president could appoint any MP, but Levy was wrong to preach that the president could ignore opposition political party leaders by poaching MPs without sanction of the sponsoring party. The constitution should never be interpreted in ways that undermine multipartyism and pluralism. A president who wants to work with opposition MPs should first get permission from the particular party. Under this arrangement, both the president’s party and the concerned opposition party will then have some kind of an alliance (or coalition) to rule together. Brazenly poaching MPs from parties does not advance our democratic ideals it undermines it.

President Lungu should forthwith reconsider his appointment of opposition MPs and have these MPs amenable to the discipline of their political parties. Lungu cannot justify his actions simply because Levy did it. “Levy did it”, is not justification enough to break, damage, and then undermine a fundamental character of our democratic system. If Lungu really likes Levy, he should copy the good things Levy did and not copy Levy’s bad manners. Levy helped Zambia reduce kaloba, he invested wisely in infrastructure, the kwacha was under control and he fought corruption. Those are the good things to copy.

For now, I am almost certain that there will be a by-election in Kasama. GBM cannot sustain the claim to a PF seat. As the by-election approaches, I am sure the UPND will make huge gains. GBM’s move to the UPND is certainly a game changer. God bless our partisan republic.

Elias Munshya

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

 The resignation of Geoffrey Bwalya Mwamba (GBM) from the Patriotic Front (PF) to the United Party for National Development (UPND) is a game changer. It is a game changer for both the PF and the UPND. It is rather fascinating, if not shocking, to see how GBM is managing to champion two causes that seem to be contradictory with each other. On one hand, GBM is saying that the people of Kasama should trust him because he had the courage to stand up to President Sata when Sata refused to recognise Henry Sosala as Chitimukulu of the Bemba people. On the other hand, GBM is also claiming that he is the true representative of the legacy of the late president. The speech GBM gave when he defected to the UPND shows that he had issues with Lungu’s PF because Lungu has neglected Sata’s vision (whatever that means). Politics is not supposed to make sense. And that is where the GBM factor becomes politically lethal to Lungu’s PF. GBM seems to be championing a cause and directing a narrative that the PF has failed to champion: the legacy of President Michael Sata.

Elias Munshya, LLM, M.Div., MBA

It has been my opinion that the presidency of Michael Chilufya Sata was one of the least successful legacies Zambia has ever had. However, some people now would still look back to the Sata presidency, get nostalgic and ruminate that Sata was better than the man who succeeded him. This is to be expected. A claim to the legacy of President Sata has now become politically desirable, and it is GBM who is winning that debate. GBM is also winning on the question of the Chitimukulu. In spite of the fact that it is Lungu who finally recognised Mr. Sosala as Chitimukulu, it is surprising that Lungu’s PF has not gotten any significant political capital out of it. For the PF to survive, it must keep the support it enjoys in Bemba areas. The political capital out of the Chitimukulu saga is instead going to GBM, and he is exploiting it very well. Lungu has neglected to drive the narrative of the Chitimukulu story. He is non-existent in the whole story. It is GBM who is being credited for something that took Lungu to correct. Lungu should now retake this narrative if he is to survive the coming Bemba political onslaught. I call it an onslaught because that is exactly what it is.

GBM and HH – Janza kumbele

GBM’s decision to re-contest Kasama might hurt the PF strategically. At the strategic level, GBM does not need to win Kasama in order to damage the PF’s claim to its Bemba strongholds. All that GBM needs is to create a framework in which the Bemba areas begin to listen to UPND and Hakainde Hichilema (HH). GBM might win in Kasama, however, a loss for GBM, is likely to be a loss of a battle, but not the war. In a wider scheme of things, what UPND needs in the Bemba lands is to raise its profile by just a small margin. Everything else being equal, if UPND raised their numbers in Bemba lands by just a quarter, they will surely make government next year. It is this reality that should make Lungu re-strategise, otherwise, he will be a half-term president, like his older brother Bwezani.

When it comes to strategy, Lungu made some errors that need correcting. It was all clear that the PF was a Bemba dominated party. When Lungu took over as president, he labored under a false assumption that the PF was a “national party”. In reality, the PF had never been a “national” party. It was and still remains a Bemba dominated party with a huge urban following. If these two constituencies leave the PF, it will collapse. With these realities in mind, Lungu needed to manage the party better. It was expected that the Vice-Presidency would go to Madam Inonge Wina. This was an excellent choice. But Lungu needed to create a powerful position that would calm some jitters among Bembas. A position such as Minister-without-Portfolio would have worked. Harry Kalaba, Emmanuel Mwamba, or even GBM would have been great choices. Such an action would have helped forestall a Bemba rebellion within the PF, which is now almost guaranteed. However, it is not too late to act.

Michael Sata

This now should bring us to the Emmanuel Mwamba issue. Emmanuel was interested in the Kasama seat. Strategically, it was going to be in the interest of both the PF and Lungu’s government to have Emmanuel in Kasama. But for some reason we all do not understand, Lungu seems to insist that Emmanuel should be shanked far away from Zambia’s political hotbed. This is a huge mistake. The PF needs a politically savvy spokesman like Emmanuel to help it retain power next year. Currently, the spokespersons for the PF are doing a great disservice. Chishimba Kambwili is a quick-tempered lead and his off-the-cuff remarks are not helpful at all. The other spokesman, Davies Chama, has also said some unsavory stuff that continue to create problems for the party and its government. Lungu needs people who can talk a little more sensibly for him: Emmanuel fits that bill. Lungu also has Sunday Chanda at his disposal, but Chanda appears sidelined too. I would not be surprised if he too is moved away from the political limelight. Lungu’s strategies are hurting the PF everywhere. You cannot run a political party like this. Something must change, and Lungu has the power to make changes.

While, President Lungu is taking his time to act on these issues I have highlighted here, Hichilema’s star is rising among the constituents that had rejected him: the Bembas and the urban areas. Kaloba, devalued kwacha, the high cost of living and quarrels with Cuundu Caitwa are not helping Lungu. GBM is helping in a little way to bring visibility to Hichilema. It will not be too long, before we have the repeat of 1968 when to the consternation of Kaunda; the Chona-Kapwepwe group beat the Kamanga alliance. Those who subscribe to a superficial view of our united nation might slam my sentiments. But those with ears to hear might get one thing or two and make political decisions that unite Zambia and actually change the political landscape for the better. The UPND seems to have gotten the message. I just hope Lungu will get it too: ukuteke mbwa mano!

Elias Munshya, LLM, MDiv., MA, MBA

 To say that Zambia’s new defence minister is a political neophyte is an understatement. President Lungu’s choice is surprising, shocking and ultimately contentious. From the little I have gathered, the Patriotic Front diehards are quite angry at the turn of events. They are equally shocked. I share with them feelings of deep doubt and uncertainty that this choice for a defence minister brings.

Richwell Siamunene is actually a member of the United Party for National Development (UPND). Regardless of how we spin it, Siamunene remains a member of parliament sponsored to parliament by the opposition UPND. From the last time I checked, President Lungu is not in an alliance of any sort with the UPND. How does he then choose a defence minister from its ranks? The idea that the president of our republic has the power to desecrate the multiparty character of our democratic edifice is an assault on the very foundations of our republic. Appointing an opposition MP to a sensitive position such as minister of defence does not sound right; it certainly does not feel right. It can not be justified.

Lungu now says that Siamunene is loyal. In Aushi, we say “imputi isula taibula kubwekeshapo.” Siamunene threw the electorates of Sinazongwe and his party UPND under the bus, what makes Lungu believe that he will be loyal to the PF, when in fact he is not even a member of the PF.

Lungu’s new found love

Following his elevation, Siamunene is now insulting Hakainde Hichilema. In a democracy like ours, it is to be expected that an MP can change her mind and choose to associate with a different party. Our constitution provides a process for that: resign and go back to the electorate. By-elections are expensive and many Zambians do not like them. But I am shocked that the same party that has led Zambia into unprecedented by-elections is refusing to have just one more by-election to test the popularity of the defence minister who Lungu has elevated behind the back of the people of Sinazongwe. The PF is not least concerned about the cost of by-elections. Had they been concerned, they would not have done a wholesale petition of nearly all of the seats won by the MMD. If Lungu wants Siamunene so much, he can take Siamunene back to Sinazongwe to re-contest on Lungu’s ticket. Then only can we be sure that this gentleman has the blessing of the people who sent him to parliament in the first place.

The appointment of Siamunene displaces several PF stalwarts within the government structure and hierarchy. By government practice, a minister of defence is a defacto number three. While the Zambian constitution does not categorically put the minister of defence as the third in command, Zambian practice and precedence has always recognised the seniority of the defence minister above other ministers. It is therefore quite questionable that President Lungu would award an opposition MP with such a colossal ministry, thereby displacing the cabinet seniority of such ministers as Simbyakula, Harry Kalaba, Yamfwa Mukanga, and Chishimba Kambwili. These ministers are not likely to revolt openly, but there are murmurs in the background loud enough to knock down a bottle of Jameson off a huge black table at Chez Ntemba.

Is Lungu sidelining Bembas?

Some good people in our country seem to suggest that President Lungu needed to appease the good people of the South after the Chundu Chaitwa by appointing a Tonga to cabinet. I find this justification to be quite insulting to say the least. What Patriotic Front Secretary General, Davies Chama, said about Tongas was very offensive. The good people from the South have justifiably expressed outrage about those remarks. The Right Honourable Inonge Wina even went to the extent of apologizing in parliament on behalf of her Patriotic Front party. Contrary to the demands by the Tonga citizens of our republic that Chama apologizes for his remarks, he has not. In addition to that, President Lungu has still not publicly addressed himself to these remarks. The only way to resolve those offensive words is for President Lungu to prevail upon his Secretary General to apologise. It is an apology that would show respect for the Tonga people of Zambia, and not this nominal elevation of a novice to the powerful position of defence minister. That which should be mended by making amends through an apology cannot be patched by making a superficial appointment of a polemic person to the position of defence minister. President Lungu’s appointment is a show of his strength and his power, but beyond power, we need compassion, common sense and fortitude. What we need is for President Lungu to show respect for the nation by bringing his disordered party collaborator into line. Chama must apologise and then resign or get fired.

Where then does Siamunene appointment leave the rest of the PF stalwarts? They really have no idea what certainly hit them. They are as shocked as a cucumber. They cannot decode what Lungu is up to. But one thing should not be doubted; Lungu’s action has left a bitter taste in the mouths of many. They have been by-passed only for Lungu to go and appoint a non-member of the PF to a very powerful position. The PF will be demoralized. The troupes of the party will not be happy. A message will be sent to Mansa, Milenge, Kasama, Lubansenshi, Kanchibiya and Chinsali. That message will state very briefly, “there is a huge change in Lusaka and it might be time to break from the Patriotic Front as it stands now”. Lungu’s recent remarks are not providing comfort to Bemba citizens of our republic. The theory I am providing here is a real possibility.

Zambia’s new minister of defence Richwell Siamunene

Once analysed within the ambit of our brief political history though, Lungu’s action of appointing a politically weak person to a powerful political position is not unique. Most of Zambia’s presidents have done it. But very rarely have Zambian presidents extended this to a minister of defence. Mostly, Zambian presidents appoint politically weak candidates to the position of vice-president. Since Lungu has a politically powerful Veep, he might have naturally wanted to go for a weak number three. For surely, had Lungu appointed politically astute candidates such as Frank Bwalya, Emmanuel Mwamba, Harry Kalaba or Mumbi Phiri to this position, they would have grown political brains much faster than Siamunene ever would. By growing brains, I mean having the ability to outshine their boss and mount a formidable political following. Lungu does not want any one to shine in the PF, and he despises anyone who shows some political prowess. May be looked at from this angle, we might find some justification in President Lungu’s elevation of a nonentity to become a defacto number 3. Congratulations to Hon Siamunene, but the real fallout is only beginning.

Elias Munshya, LLM, M.Div., MBA

To redeem our national pride and domestic prowess, we must face the truth. To quote our Lord Jesus Christ, we shall “know the truth and the truth shall set us free”. What we need in Zambia is a huge dose of truth. Truth is important for several reasons. First, truth helps us to make a fair assessment of our weaknesses, our abilities and ourselves. Second, truth helps to rob us of all the trappings of self-deception that are so endemic with our shared humanity. Third, truth directs us to what really matters to aid us navigate through the alterations we desperately want. Fourth, truth should inspire us to seek and pursue change. Our country does not need irrational positive confessions more than it needs realistic assessment of how we have interacted within our young history as a nation.

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

The Patriotic Front government has now decided to borrow $300 million to revamp Zambia Telecommunications Limited (ZAMTEL). Previously, it borrowed several millions to revamp Zambia Railways Limited (ZRL). It appears like they might borrow more money to revamp companies such as Zambia Electricity Supply Corporation (ZESCO) and many more. It seems there is always someone willing to lend money to us, even if we do not have any tangible plans to pay it back. While the PF’s intentions seem quite legitimate, I am quite concerned that putting more money in these entities will actually not lead to any revival. Had the major problem with these entities been money, I would not have hesitated to support recapitalization. The greatest problem with these entities is not money. ZAMTEL does not have a money problem it has a political problem. The PF cannot resolve a political problem by pumping more borrowed money into a loss making enterprise. Cash recapitalization cannot answer an endemic political problem. Contracting more kaloba from New York shylocks cannot cure a weakness in the political process and culture behind the malaise in these companies.

How is it that ZAMTEL makes losses when its competitors are churning out huge profits? How come Copperbelt Energy Corporation (CEC) makes profits but the company, which sells it power, ZESCO, is bleeding? It is not more money that will resolve the problem Zambian parastatals have. We must do more than that. We must face the truth and then make some changes.

Very educated managers run nearly all parastatals in Zambia. They are the very best in their industries. They are the engineers, lawyers, and Master of Business Administration (MBA) graduates. These directors are the crème de la crème of Zambian society. And yet these educated Zambians cannot manage these companies effectively, because of a political interference, patronage and “wako ni wako” problems. It is these political problems that require change first before we can even think of changing management or even throwing more money at these companies.

Since independence, the Zambian state has lamentably failed to stay away from boardrooms of parastatal companies. The Government of Republic of Zambia (GRZ) has so disappointingly interfered with business decisions of parastatals as to render the educated and skilled men and women at the helm of these companies ineffective and at most redundant. We need to rethink the present parastatal model. GRZ control of boardrooms of parastatals should be abandoned. GRZ is not good at doing business that actually makes profit. It must stop pretending to run business. It should stay away from these companies.

The kaloba couple

If GRZ cannot stay away from boardrooms, the next proposal should be that it sells its majority shares in these companies so that private capital takes over these companies. GRZ does not need to sell all shares; all it needs is to sell its majority shares to others who can run businesses better in a quasi-parastatal model. So far, the best quasi-parastatal models that seem to work are Indo-Zambia Bank and Zambia National Commercial Bank (ZANACO). In both of these companies, GRZ has some shares but not controlling shares stemming the politicization of the boardroom. As such, once IZB or ZANACO declare profits, GRZ does get a share of the dividends. It is not usually huge amounts, but it shows that with government staying away from controlling boardrooms, Zambian companies can run at some profit.

Professor E. Clive Chirwa

There is a market for a good railway company in Zambia. But in order to have a good railway company, GRZ should stop political interference in ZRL. The MMD government did well to sell ZRL to private investors. The only thing GRZ needed was to have significant number of shares in the company to have a say in it and help nudge the company in the right direction. Disaster happened when the PF government repossessed ZRL, forced politics into it and before long, ZRL became a tool in the hands of a Good Parasite who demanded a K2 Billion annual salary and a $1,000 per night home. Professor Chirwa could make all these grandiose demands, because he knew that ZRL was a political cow that could be milked at the will of politicians. No reasonable private board would have allowed the eminent professor to have such a go at a company. But to date, Professor Chirwa justifies his demands because politicians said so!

The Zambian state should now privatize and sell the following companies: The University of Zambia, the Copperbelt University, one of the two government owned newspapers, ZESCO, ZRL, ZAMTEL and the many other companies. Perhaps the only institutions that should be saved are statutory bodies such as NAPSA and strategic organisations such as State House and the red brick. Once organisations such as UNZA are sold, government can then concentrate on what government can actually do better: making policy and enforcing standards. Why on earth have we insisted on running UNZA when GRZ’s running of UNZA has transformed it into a cacophony of shame? Sell all these companies and save us from the drama.

As for ZAMTEL, I urge GRZ to not contract any more debt. Unless if GRZ has really got other plans for this kaloba. The last time I checked a bottle of Jameson or a designer suit does not cost $300 Million.

By Elias Munshya, LLB, LLM, MBA, M.Div.

Elias Munshya, LLM, M.A., MBA, M.Div. (Student-at-Law, West End Legal Centre)

Administrative law is that branch of law that governs the scope and activities of government agencies. Government agencies are daily making important decisions that affect Zambian citizens. However, in the discharge of their functions administrative bodies must act with “fairness”. Together with the right to an unbiased judge, the right “to a fair trial” forms part of the elements that constitute the common law rules of natural justice. These rules are a pinnacle of both Zambian and English law. In the Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6 case, it is Lord Scarman who stated that there was an implied duty of fairness attached to all administrative acts. There is an expectation by anyone who is subject of an administrative tribunal to have a fair hearing. Additionally, when it comes to judicial review, a person affected may challenge a decision on the ground of procedural impropriety if his or her right to a fair trial are abrogated.

In the context of England and Wales, fairness has been reinforced by both sections 2 and 3 of Human Rights Act 1998 (HRA), which places a demand upon the courts and all administrative bodies to so construe legislation, as much as is possible, in compliance with the European Convention of Human Rights (ECHR) and the rulings of its institutions. Specifically, Article 6 (1) of the ECHR states that a person is entitled to “a fair and public hearing within a reasonable time by an independent and impartial tribunal”. These same guarantees are provided in the Zambian constitution.

Fairness, however, is not a clear-cut concept in administrative law because applying what is fair in one case might be unfair when applied in another. What is precise in all this, however, is the fact that fairness does depend upon the circumstances of the case and the nature of the tribunal. As such, while there is a settled principle of fairness in administrative law in England, Zambia and elsewhere, the application of this principle must be contextualized to specific cases if fairness is to be achieved.

In the case of R v Home Secretary, ex p Doody [1994], Lord Mustill stated several principles relevant to the concept of fairness in administrative law. First, the standards of fairness in administrative law are not immutable. They can change with time and change of circumstances. Le Suer, Herberg & English (1999) state “fairness is a flexible concept”. Second, according to Lord Mustill “principles of fairness cannot be applied by rote identically in every situation.” Context is important. Third, Lord Mustill opined that a person who is going to be adversely affected by an administrative decision must be given the opportunity to be heard either before the case is heard or after or both. This third principle complies with the 1915 ruling in Local Government Board v Arlidge, in which the House of Lords held that, there is “a minimum requirement that a party to a dispute should be given an adequate opportunity to present his side of the argument.” Fourthly, according to Lord Mustill, for a person to make a worthwhile presentation of his case, he must be given sufficient substance of the case against him. These principles, taken together with ECHR jurisprudence, would help in the discussion of the relevant cases in which fairness has been the subject matter. Some of these cases are explained below.

English courts have held that a violation of natural justice principles including the principle of fairness would not be acceptable. In R v Board of Visitors of Hull Prison, ex p St Germain, the court ruled that the prisoner’s right to fairness had been breached by an administrative agency’s reliance on hearsay evidence without giving the prisoner the opportunity to respond to that evidence. As in this case then the court saw that in those instances where the person’s liberty is at stake, the principles of fairness should be strictly followed. In the case of R v Barnsley Metropolitan Borough Council, ex parte Hook (1976), it was held that the rules of fairness had been breached since the decision was excessive and the trial violated the fairness principle. In R v Army Board of the Defense Council ex p Anderson, the administrative agency had breached the rules of fairness since it had not provided Anderson with copies of the written evidence to enable him to comment and reasonably react to the accusations.

However, notwithstanding the court cases mentioned in the paragraph above, the courts have been able to vary the demand for fairness. The courts to vary the demand for principles of “fairness” have used national security considerations. In the cases of R v Home Secretary, ex p Hosenball [1977] and in the case of R v Home Secretary, ex p Cheblak [1991], national security considerations were used to dispense with the stricter need for natural justice. Additionally, in the case of Secretary of State for the Home Department v. AF (2009), the Court of Appeal was willing to allow for the national security consideration in varying the application of the principle of fairness in administrative law, but nevertheless called upon the trial judge to allow the special advocates to have access to the information against the appellants. Here the court was attempting to balance the need for natural justice on one hand and national security considerations on the other.

Courts have varied what constitutes a fair hearing if the subject matter being adjudicated involves the welfare of children. As such, in the case of Re K (infants) [1965], a case involving infants, the courts varied the elements of fairness by not availing all the facts to all the parties of the case. Additionally, in the cases of R (West) v Parole Board [2005] and R (Roberts) v Parole Board [2005], the House of Lords held that in some circumstances the general principles of fairness could be overlooked. These cases involved some prisoners who demanded that the information used in arriving at decisions that adversely affected them should be disclosed to them. In R v Commissioner for Racial Equality, ex p Cottrell & Rothon, it was held that even if cross-examination was not permitted and witnesses did not attend, there was no breach of the rules of fairness. Again the principle of fairness was not followed in this case.

In view of the case law, the present state of administrative law is that fairness still remains an integral part of the justice system. Administrative bodies may deviate from the fairness principle, if it would be in the interest of justice to do so. Even then, parties affected by the administrative body’s decision should be given sufficient information and opportunity to offer their side of the story. This is important for the development of Zambia’s constitutional and administrative law development.

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Suggested Citation:

Munshya, E (2015). Fairness In English and Zambian Administrative Law. Elias Munshya Blog (www.eliasmunshya.org) (Sep 3, 2015)

By Elias Munshya, MBA, LL.M, M.Div.

Recently, Zambia’s newly installed Chief Justice Irene Mambilima reminded the legal community of the need to use Alternative Dispute Resolution (ADR). According to Slapper & Kelly (2009: 391) ADR is a means of resolving disputes without resorting to court action. It is available in civil cases but not criminal cases. ADR includes Arbitration, Mediation, Conciliation, Ombudsman, and Tribunals. Arbitration is the procedure where parties in dispute refer the issue to a third party for resolution. Mediation, on the other hand, involves a mediator who helps both sides come to an agreement. In Conciliation the conciliator takes a more interventionist role between parties. Ombudsmen are independent office-holders who investigate and rule on complaints from members of the public about maladministration in government, public and private sectors. Tribunals are quasi-legal bodies empowered by parliament or by secondary legislation.

Chief Justice Ireen Mambilima

In the words of Lord Brooke, ADR is able “to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve”. For Chief Justice Irene Mambilima ADR helps to reduce the backlog in the court system by diverting cases to a more efficient scheme. ADR advocates assert that all disputes are suitable for ADR due to several factors. Law by its nature is frequently complex and ambiguous. Additionally, the court procedures are so tedious. ADR advocates also assert that it has the advantage in that it does not follow all this tedious procedure. For example, there is no requirement on ADR to follow particular processes and procedures without which, a legal claim may be dismissed. The cost of court of action should make ADR more attractive. It costs a lot more to hire lawyers who mostly charge by the hour. In Zambia, the population of 15 million people chases less than a thousand lawyers. This is an abomination that leads to high litigation cost. ADR could become a cost effective way to resolve civil disputes.

The adversarial character of the Zambian court system coupled with the intimidating atmosphere of a court hearing makes the friendlier ADR a better alternative to the courts. In ADR it is the parties who may choose a place that is more conducive for them where they can discuss freely. The court processes and court resolutions take a long time. No one can make the court system move faster. It abides by its own rules and regulations. These rules and regulations may lead to unnecessary adjournments taking more time and costing too much more for the parties. However, with ADR the parties to the dispute can have more control over the time that their dispute may take.

In spite of the obvious advantages ADR has, it should be stressed that ADR should not and cannot replace the courts of law. Courts have an indispensable role in Zambia. This role is both constitutional and historical. To begin discounting the role of the courts by an irrational commitment to ADR would undermine the very objectives of our legal system.

Unlike the case with ADR, legal custodians such as judges, lawyers, prosecutors, and many others manage Zambian courts. This brings the question of why we should in the first place prefer legal custodians to other professions. In modern society, the lines between legal professions and other professions are being diminished by the day. However, it is still necessary for our society to respect the rule of law. People who have studied and specialized in law should superintend the administration of the law in pubic interest. But with the growth of ADR, there is no guarantee that the mediator or the conciliator would be a person who understands or even appreciates the law.

While ADR should be seen as helping reduce the court load, it should also be accountable to the court system. Indeed, one of the advantages that ADR has over the Court systems is its ability to help the court systems reduce its workload. But that should be taken as secondary advantage and not the primary one. The primary one is that ADR is simply there to resolve the caseload of the ordinary courts, and as such it should not subvert the functions of those courts.

Unbridled preference for ADR could lead to unhealthy competition with the courts, and instead of delivering justice these two institutions could be antagonistic with each other. To avoid that, it would be better to make one subservient to the other, and in this regard then, the courts should have the upper hand and the supervisory role. It would be unreasonable to have ADR replace or even be regarded as equal to the courts.

Courts have the power to enforce its rulings more than ADR has. If anything ADR needs the approval of the courts to have any enforcing power, and as such the court still have the vital and indispensable role to play in the resolution of disputes.

Courts still should have and does have the role to play in resolving matters that would set judicial precedents. These are matters that will serve as a guide to resolving any future cases of a similar nature. ADR, unfortunately, does not have such sway. It is this power that makes courts of law to play a more significant role in resolving a wide category of disputes.

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

Courts do have an accountability structure to Parliament and to the general public at large whereas ADR does not have such accountability. And in the absence of accountability, ADR has the potential to not only ignore the law but also ignore public policy. Even if the constitutional principle of Zambia is anchored on the Separation of Powers among the Executive, the Legislature, and the Judiciary, this principle still makes each of the organs of government partially accountable to each other. If law is to be accountable to the people of Zambia, then the court system should remain the mainstay of the resolution of most legal disputes. As such, while ADR has an indispensable role to play in helping society and the court system resolve Zambians’ conflicts, it is unsuitable to replace the courts of law.

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Suggested Citation:

Munshya, E. (2015). A Theory of Alternative Dispute Resolution in Zambia, Elias Munshya Blog (www.eliasmunshya.org) (11 September 2015)

By Elias Munshya, LL.M, M.B.A., M.Div.

Under both English and Zambian law, the defence of insanity applies if it is established that at the time of committing a crime, the accused was under the defect of reason from the disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 of England and Wales now provides several options for the judge once the insanity verdict is rendered. These options include a hospital order, a guardianship order, supervision and treatment order and/or an absolute discharge.

According to Lord Denning in the case of Bratty (1963) “automatism” on the other hand, was defined as “an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from a concussion or whilst sleepwalking.”  If successfully pleaded this defence may lead to an acquittal—with the exception of strict liability offences.

Judges have been troubled with how to distinguish between the two defences. In some instances, an accused may plead insanity only to have judges replace it with automatism, and vice versa. Similarities exist between insanity and automatism. First, they both involve some element of an accused not knowing or if he knew not being able to control his actions. Secondly, they both involve a denial of either the mental element (mens rea) or the forbidden act (actus reus). Thirdly, both insanity and automatism involve some defect of the powers of reason. Fourthly, both of them may be caused by a disease of the mind or a “defect of reason”.

“Defect of reason” was in the case of Clarke (1972), an insanity case, defined as a deprivation of the power of reasoning. According to Quick (1973), another insanity case, a disease of the mind should derive from an internal source which may be Epilepsy (Bratty [1963]), or Sleepwalking (Burgess [1991]). Specifically, the case of Bratty demonstrates that the accused may have laboured under a disease of the mind (therefore could plead insanity) leading to a defect of reason while at the same time having the same disease make his hands or feet, do acts which his minds has no control over. This would cause an overlap between insanity and automatism.

Courts in both Zambia and England have come up with some mechanisms of how to distinguish between insanity and automatism. The first difference lies with whether the defect of reason was as a result of an internal cause or an external one. If internal, then that cause should rightly be labelled as a disease of the mind and therefore qualify for the insanity defence. If on the other hand, the cause is external, such as violence, drug overdose, or alcohol, then the correct defence should be automatism (R. v. Cottle, 1958: R. v. Quick, 1973). Internal factors are derived from within the individual that robbed him of the power of reason, whereas the external factors are those forces outside him that lead to a defect of reason. The most troublesome cases in this regard are those involving diabetics. At what point does a case of diabetes become insanity or an automatism? The rule has been that if the defect reason was as a result of some medication such as insulin (external factor) taken by an accused then the right defence would be automatism, but if on the other hand an accused committed the crime when he had not taken any insulin or forgot to take food then his defect of reason is as a result of something internal and as such that should be case of insanity.

Zambian and English courts have used the permanency test as well. If the defect of reason is caused by something transitory then the right defence should be automatism but not insanity. The question becomes whether or not a transitory cause such as a concussion may actually lead to a more permanent disease. It is my submission here that the courts’ need to strictly differentiate between insanity and automatism are insufficient and mostly troublesome.

Another difference between insanity and automatism regards what each defence attempts to deny: mens rea for insanity and actus reus for automatism. An accused who pleads insanity acknowledges that he did not form the mens rea for the crime due to his mental defect. Even if he had done the necessary physical act of the offence, he did not have the mental fault. In pleading the defence of automatism an accused is denying the actus reus, that he did not do the forbidden act by reason of his inability to control his actions due to defect of reason or a disease of the mind. But even this overlaps as well, because automatism while regarded as denying the actus reus, seems in some cases to be a denial of mens rea too.

The consequences of pleading either of these two defences are radically different. If an accused pleads automatism, he would be discharged whereas if it is insanity he risks being labelled as insane and risks a lengthy term in a mental hospital. The only difference in pleading these defences is just whether an accused’s conduct was triggered by either an internal or an external factor. I submit that these two defences in Zambia as well as England, should be abolished and replaced with just one defence incorporating both of them, without the trouble of trying to distinguish between the external and internal factors.

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Suggested citation: Munshya, E. (2015). Insanity and Automatism in English and Zambian Criminal Law. Elias Munshya Blog (www.eliasmunshya.org) (September 17, 2015)