FLASHBACK:

PF MPS WALK OUT PARLIAMENT

By Lambwe Kachali and Jack Zimba
Post newspaper: Thursday August 14, 2008

NINETEEN Patriotic Front (PF) members of Parliament (MPs) led by vice-president Guy Scott yesterday walked out of Parliament in protest against the Speaker’s ruling that the current executive was legitimate and should be allowed to carry out its mandate.

This was after Dr Scott rose on a point of order asking for guidance from the Speaker whether it was constitutional for the Government to appoint Defence Minister George Mpombo as leader of Government business in the House when there was no substantial office bearer.

Dr Scott, who is Lusaka Central constituency MP, further argued that nominated MPs did not have the mandate as the appointing authority had died, saying it would only be legitimate if they were re-nominated by President Rupiah Banda.

The MPs walked out of Parliament immediately after the Speaker of the National Assembly Amusaa Mwanamwambwa finished making his ruling shortly after the House resumed sitting yesterday.

In delivering the ruling, Mr Mwanamwambwa said constitutionally, after every five years, the people in Zambia were required to hold general elections in which the councillors, MPs and the president are elected.

He said MPs elected and nominated were still serving the five-year tenure of office as stipulated by the law following the tripartite elections in 2006.

“What the people of Zambia did on October 30 this year was to carry out one of these three elections – the presidential election.

“Please note that Cabinet was not dissolved. There was an acting president who carried on the work until the polls. Since Parliament was not dissolved, all the members continue in their positions, including nominated MPs,” he said.
The Speaker said the Cabinet continued to run after the October 30 polls and it was up to the head of State to appoint a new one if he so wished.
On the issue of the leader of Government business in Parliament, Mr Mwanamwambwa said the position was not only the preserve of the vice-president but any other senior minister could act or take up the position upon appointment by the president.
And Mr Mpombo said the walk-out by the PF MPs was uncalled for, saying Cabinet was not dissolved when the presidential election was announced.

“For PF to assume that Cabinet is illegal is poor interpretation of the law,” he said.
But PF chief whip Yamfwa Mukanga in an interview outside Parliament building maintained that the current executive was illegitimate.
Mr Mukanga, who is Kantanshi MP, said if President Banda was not sure of the people to appoint in his Cabinet at present, he was supposed to reappoint members from the old Cabinet and then later make reshuffles at an opportune time.
“People who are not legitimate should not answer our questions in Parliament. We have expressed our concern and hope a reaction will be made,” he said.
Dr Scott said the PF MPs walked out because they did not agree with the legal opinion of the Speaker.

Dr Scott said the PF hoped that the Government would regularise the situation

CHIEF Mukuni has called for the immediate lifting of State Counsel John Sangwa’s suspension from practicing by the judiciary.

And chief Mukuni says there can be no prosperity and progress for any nation whose government does not place constitutionalism, rule of law and impartial pursuance of public order at the centre of its existence.

In a statement, chief Mukuni whose chiefdom runs across Kazungula, Livingstone and Zimba districts appealed to all traditional leaders to offer solidarity to Sangwa’s patriotism and described him as a man of a logical mind, defender of the constitution and the rule of law.

“John Sangwa’s suspension by the Judiciary from practicing his law is unfair and unjust and should be lifted immediately. Counsel Sangwa’s selfless act in the face of naked aggression and persecution by the state machinery, political party functionaries and surrogates, inspires hope and direction for our country that has reeled backwards in areas of constitutionalism, civil and political liberties and shared values on which our nation was founded upon,” chief Mukuni said.

He praised Sangwa for his unequivocal and courageous resolve to stand on the side of the people, by defending democracy and civil liberties of all Zambians.

Chief Mukuni noted that Sangwa’s resolute fight transcends the pettiness of politics, partisanships and patronage.

He added that Sangwa’s fight was for the survival of the collective character of the nation that exceeds artificial barriers of race, ethnicity, gender, religion and other narrow sectarian interests.

“He has raised the bar for our people, especially our young citizens to emulate and pursue. He and other like minded brave patriots must be supported by all peace loving citizens,” he said.

“There can be no prosperity and progress for any nation whose government does not place constitutionalism, the rule of law and impartial pursuance of public order at the centre of its existence. All traditional leaders must therefore support any effort that promotes the rule of law and the enjoyment of peaceful coexistence by their subject,” chief Mukuni said.

He called on all Zambians to speak with one voice against the abuse of the institutions of governance by those who are vested with privileges and responsibilities to govern.

“This is what John Sangwa SC is advocating for, this is why he needs our collective support by ensuring his arbitrary suspension from appearing before the courts of law, is unconditionally lifted,” said Mukuni.

CONSTITUTIONAL Lawyer Rodger Chongwe State Counsel says government is being run by thieves and people should not bury their heads in the sand about this fact.

And Chongwe has wondered why the Law Association of Zambia (LAZ) is criticizing lawyers who are speaking against dictatorship.

Meanwhile, Chongwe says it is worse than dictatorship for the Judiciary to bar constitutional lawyer John Sangwa State Counsel from appearing before any court in Zambia without a hearing.

In an interview, Chongwe wondered why LAZ was seemingly siding with oppressors.

“The Law Association of Zambia might be merry with the President of the Republic of Zambia. But Mr Lungu does not respect the rule of law. The Constitutional Court passed a judgment saying the Cabinet ministers who had received money when parliament was dissolved should pay back that money to the government with the connivance of the President of this country. Mr Lungu, because he is the one who told them in spite that the constitution says that when Parliament is dissolved, even Cabinet is dissolved, ‘Me I am the President so you should continue working’. We don’t have a President in his country so that he can break the law. And once they break the law, everybody should shut up and walk away from it. How many ministers have paid back that money? I doubt if five of them have paid. Is that a country under the rule of law? And LAZ now comes up because the President is involved in the issue then you want members of the Association to be inconvenienced? To be demonized? I refuse to do that!” Chongwe exclaimed.

“After all, the history of lawyers in this country and the part they played in bringing about political pluralism is there. The leadership, then, took part; they joined the people of Zambia as lawyers that we want our country to be democratized. And it was and we want it to be so. We did not say things about the rule of law so that when we become leaders, we are the first people to break the rule of law and incarcerate our people for doing nothing. We have masholis (thieves) running the government, why should we be burying our heads in the sand? And they remain so? Why should we have a body of lawyers condemning men and women in the law who are speaking against dictatorship? That they themselves are now sort of supporting the oppressors. Let us not live in castles. If we have positions, let us use those positions to the good our country. When I am appointed chairman, it doesn’t mean that I will always be right, members of that group of which I am chairman are the people who will make sure that that organization is run properly.”

And Chongwe condemned the Judiciary’s decision to bar Sangwa from appearing before any court, noting that it was not the first time he had questioned the ConCourt judges’ credentials.

“Don’t forget that when those judges were appointed, Sangwa in the same opinion which was printed in the papers, it was written by him in 2016 telling us who qualifies to be the judge on the Constitutional Court. So it is not new. He did not write it this year, he wrote in 2016. We read it, the court read it and everybody read it. They did not say that he committed contempt of court. And in any case, even if he was wrong, they should have brought him to the court to ask him to show cause why the court will not take away his practicing certificate. In our language, we call it the right to be heard because he was not heard. He was just told that this is the punishment we are giving you, punishment for what?” he asked.

“This idea that we have heard you have insulted the President in a piece of paper and therefore, we are going to beat you that is conduct unacceptable amongst human beings. Let us treat each other as human beings. I know that the idea is to protect the President but you protect anybody through the rule of law, what the law says. But when you break the law, you are not protecting the person you want to protect. If you want to protect the judiciary, the Judiciary has a way of protecting its own integrity. They would have called Sangwa instead of saying that ‘from now on, you are not going to practice law’, That is the worst type of dictatorship! It has never happened in Zambia and we should never allow that behavior. That is misusing power! They should have given this man the right to be heard. But they did not.”

Chongwe insisted that the decision was worse than dictatorship.

“A court can’t just make a decision taking away someone’s right to survive without hearing him. That is very cruel! That is inhumane behavior. Give him chance to say why he said that before that particular tribunal. Even in a dictatorship, we don’t expect to live like that. This is worse than a dictatorship! Last week we were condemning the President for insisting that he must stand for office and we told him that it was unconstitutional. And we are now condemning the judiciary for doing that to Sangwa. That is misuse of power, misuse of authority! We can’t condone that! People ought to be given the right to be asked ‘why did you do this?’ And if it is proven that they were wrong then we can sentence them. What has he done? That court which has been insulted has got the authority to summon him and to ask him questions to justify what he written about them,” Chongwe said.

He insisted that the ConCourt’s judgment on Lungu’s elidibility was wrong, adding that judges could also make mistakes.

“What I said was that Judges make mistakes and in this case, the judges made a mistake because Mr Lungu has already been twice elected as President and therefore, he was not going to qualify in 2021. And I said courts do make mistakes like all human beings. They are wrong because the point is that if you look at the judgment of the Constitution Court, the issue of holding office by a President, they did not discuss it. And they say so in their own judgment and yet that is the issue that was brought to the court whether President Lungu in 2021 qualifies to seek the office of the President. The decisions they made, they were wrong! In the minds of a lot of people, they think that because the President succeeded a term of someone else before concluding and therefore that he was actually [finishing] the other person’s term of office, that is wrong interpretation. In 2016, Mr Lungu had a running mate, Mrs Inonge Wina, so if something happens to our President today, we will not go for elections because Inonge Wina will succeed him to conclude his term of office,” said Chongwe.

“There is no law which forbids people from criticizing people who are holding public office. Because if you are a public officer you know that you are under the gaze not only of your own family but of all the people of Zambia. And some of them will criticize you wrong, others rightly. If you are a judge, if you are a minister. And people have very wrong concepts about judges that they are always right. No they are not always right, there are times when they are wrong. Judges of courts don’t always make correct judgments even if they are the highest courts. They are human beings and they make mistakes. What the Constitutional Court said they are not going to deal with this matter because it is otiose, that was wrong. It was not otiose and that, in fact, was the matter for the court to deal with whether Mr Lungu qualifies to stand for office of presidency in 2016 because at that time, he already has stood for the Office of the President twice. And according to that side of the constitution he cannot! There are blind spots, it doesn’t mean that the judge is always correct, no. Lawyers make mistakes, everyone makes mistakes. For the ConCourt, they even said we have not looked at this very closely, we have not considered it because in view of what we have already said that this man did not have a full term of office, we are not going to discus the issue of his election to the office of the President and that is why they called it otiose. And that was mistake. I was not insulting the judges.”

The minister of Justice Given Lubinda has presented the highly contested Bill 10 to parliament for second reading this afternoon, but the presentation was marred by a boycott as opposition members of parliament from the United Party for National Development (UPND) walked out.

The UPND members walked out of the presentation citing doing so in solidarity with the people of Zambia who have vehemently rejected the Bill for being a draconian piece of legislation.

Speaking after the walk-out the leader of the opposition in Parliament Jack Mwiimbu said the Bill should rather be taken back to the people for further considerations and recommendations, before it could be brought back again.

Meanwhile, the party had already made its intention to walk-out known, in a recent televised programme another UPND Member of Parliament for Choma Central Conrnelius Mweetwa said walking out is provided for in the Constitution of Zambia under freedom of expression.

He has there are many ways of expressing oneself, adding that walking out is one such way of expressing displeasure about something.
At least 53 UPND MPs and Independent MPs walked out of parliament as Justice Minister Given Lubinda started presenting Constitutional Amendment bill no. 10 to Parliament for second reading.

The three members of Parliament from the opposition UPND have defied the party directive to walk out of Parliament when the Constitutional Amendment Bill known as Bill 10 was tabled, are; Solwezi West MP Teddy Kasonso, Nalikwanda MP, Prof. Geoffrey Lungwangwa and Mukumbuta Mulowa.

Meanwhile, commenting on those who remained seated while the rest of the opposition members of the UPND walked out, Mwiimbu said they were weak souls who had been paid by the ruling PF party to sell-out.

However, the Minister carried on with his presentation in the absence of the opposition legislators. Lubinda lambasted the walk out behaviour and integrity saying the UPND MPs, will be judged by the Zambian people.

Mr Lubinda has consistently said it was governments intention to see to it that all the lacunas in the amended constitution of 2016 are tabled in Parliament. He also announced the retention on the payroll for retired civil servants among other articles that were amended.

UPND Nalikwanda MP Geoffrey Lungwangwa who contributed to the debate, said strengthening institutions in the country is important because Zambia is going through a young constitutional democracy.

The Zambian National Assembly is composed of 89 PF MPs, UPND (58) MMD (4), 14 independent law makers and 1 from FDD bringing the total number to 166 members.
The constitutional amendment Bill 10, requires to garner a minimum two thirds majority to enable it pass. Bill no.10 has become hotly contested topic with some sections of society advocating for its withdrawal.

The Commonwealth Lawyers Association (CLA) has added its voice on the matter regarding the treatment of lawyer John Sangwa S.C. of Zambia by the government and the stripping of his right to practice in any court in the country, reports Zambian Eye Correspondent.
Recalling that the Basic Principles on the Role of Lawyers(Basic Principles) were Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, CLA says due process in dealing with his case was not followed.

CLA says it noted with concern the violation of basic principles by the government and as stated on paragraph 16:
Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrances, harassment or improper interference; and shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”

The lawyers body also says that the Basic Principles paragraph 19 was also ignored by the government which states that:
No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.

CLA adds that some of the other clauses of the Basic Principles include paragraphs 27, 28 and 29 which states that:
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
“Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.

“All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.

The lawyers body added that Mr John Sangwa has been prevented from practicing in all courts of law by the direction of the Judicial authorities in Zambia. And bemoaned that this was done before a complaint that they have filed against him has been considered by his professional body; and that the judiciary, which should uphold a right of due process, has not permitted due process in this case to run its course.

RAINBOW Party general secretary Wynter Kabimba says he does not agree with the Constitutional Court’s interpretation of a Presidential term of office, which, according to him, deems President Edgar Lungu eligible to contest the 2021 general election next year.

And Kabimba says he supports the clause in the Constitutional Amendment Bill 10 of 2019, which seeks to re-introduce the position of deputy ministers, arguing that they were helpful during his time as Minister of Justice.

Speaking when he featured on Joy FM’s The Platform programme, Thursday, Kabimba insisted that President Lungu was ineligible to contest next year’s general election.

“President Lungu doesn’t qualify. The Constitution is very clear when you read Article 105 and you go down to 107, you actually come to realize that the man is not eligible. They (PF) intended to make him eligible, the intention was to give him a third term, but the drafting is bad. They didn’t pay much attention to the drafting. So, they took away a term from him (from) their own Constitution. So, he doesn’t qualify, and this ongoing debate, now, is unnecessary to be honest with you. Yes, there is a judgement, which has been handed down by the Constitutional Court that interprets with what a term is, (but) I disagree with that judgement, but I still respect it as a judgement of the court. But I think the judges misdirected themselves in the interpretation of the Constitution. The definition of what a term (of office) is under that judgement is not correct. The finding of what a term is in that judgment is just not correct!” Kabimba argued.

“Article 105, if I am not mistaken, does not talk about holding office. It says, ‘no person who has twice been elected…’ it’s a very short paragraph. So, how are we importing all these things of ‘holding office twice?’ It only talks about that article, which only refers to being elected twice. And if you just confine your reading to that Article, it throws President Edgar Lungu out! He was elected once in 2015; he was elected for the second time in 2016, so he has been elected twice. I don’t even want to delve in the academics of holding office or not holding office. I want to interpret what Article 105 says about somebody who has twice been elected.”

Kabimba said President Lungu was a beneficiary of a wrong judgement by the Constitutional Court.

“This matter went before the Constitutional Court and the Constitutional Court interpreted what a term is and went further and said that, ‘…it, therefore, means that President Lungu has not served two terms of office.’ And the Constitution says the decision of the Constitutional Court is final, it is the court of first and final instance and its decision is final. So, to that extent, this matter has been settled. But in my view, I still stand by my argument that the Constitutional Court was wrong and is wrong! So, President Lungu is a beneficiary of a wrong judgement by the Constitutional Court,” he said.

And Kabimba said he was in support of the re-introduction of deputy ministers.

“The issue of deputy ministers has been contentious as to what their role is. The general understanding and belief is that these guys really don’t do much. And that is anchored on the argument that when a substantive Minister is out of the office, the President appoints another Minister to act and not the deputy Minister. I am in support of the clause that supports bringing back deputy ministers because having served as Minister of Justice, I came to appreciate the roles, functions and responsibilities of a deputy Minister. But others are entitled to a different view,” Kabimba, was part of the National Dialogue Forum which drafted Bill 10, said.

He also supported the creation of a coalition government.

“Starting from 1991 to-date, all our elections have been financed by donors. There is not even a single election apart from by-elections that has not been financed by people from outside. In other words, your democracy is anchored on the good will of other people. In other words, we ought to be beholden to those that are sustaining our democracy in order to remain a democracy because we have failed to finance our own Presidential and Parliamentary elections! The registration of voters is financed by cooperating partners; even the issuance of National Registration Cards, there is a component of a donation there from cooperating partners. But why should we have a Constitution that provides for a run-off within 30 days when you are just coming from an election, which has been financed by outsiders?” Kabimba wondered.

“Why do you want to have an expensive menu in your house when it is your neighbour that is feeding you? I think that’s not being reasonable. Therefore, our view, as Rainbow Party is that, it will give us some sense of pride if we can do away with that article relating to a run-off. I am sure even these guys that are helping us are tired; they have problems in their own countries, too. We can’t be going back to them every now and then asking for money from them! Can’t we stand on our own and run our own affairs without being beholden to others? So, that clause makes a lot of sense in terms of promoting Zambia’s sovereignty and independence that we’ve craved for since 1964. That 50 (per cent) plus one clause is expensive.”

He further said that working outside of the PF made him happy because he was not being blamed for all the problems the country was facing.

“I consciously resigned my membership in PF. There are people who say that I was expelled, I wasn’t expelled. On 12th November, 2014, I did write a letter to Dr Guy Scott, who was then President of the party, that I had resigned my membership from PF. That’s not a decision that I made out of an impulse of the moment, I thought through it and I decided to leave the political outfit to go somewhere else and, therefore, I have no regrets not to be a member of PF. In fact, I am very happy that I am not a member of PF because, now, I am not part of the inequities in PF. You will not blame me if you found no mealie meal in the shops; you won’t blame me if you don’t get paid at the end of this month. So, I am a free citizen; I walk the streets of Lusaka very freely,” said Kabimba.

The opposition UPND has again instructed its Members of Parliament to vote against the controversial Bill 10 today.

The UPND has since described the ruling PF as the most undemocratic party with regards to constitutional making processes.

Leader of the Opposition and UPND Legal affairs Chairman Jack Mwiimbu told a media briefing that it was folly for the PF to accuse the UPND of being undemocratic for wanting to defeat the passing of the draconian constitutional amendment Bill 10.

Mr Mwiimbu said the PF in opposition had always walked out of the constitutional making process and had even gone further to expel 23 of its MPs for supporting the constitutional amendment process, a sign that the party has no respect for divergent internal views.

Mr Mwiimbu who is also Monze Central Member of Parliament said the UPND shall stand with the people of Zambia who have said no to the enactment of the Bill into law and demand for its immediate withdrawal from the floor of the House.

He said the party has drawn its three-line whip in accordance with parliamentary etiquettes and expects all its Members of Parliament to toe that line and vote against the Bill.

Flanked by Kabompo MP and Deputy Parliamentary Party Whip Ambrose Lufuma, Sesheke MP, Romeo Kangombe, Luampa MP Chikote Makozo, and Mitete MP Misheck Mutelo, Mr Mwiimbu said the three-line whip has been drawn in the sand and whoever crosses it is an enemy of the party and the public.

He has since advised Justice Minister Given Lubinda to immediately withdraw the Bill from the House as it lacks the requisite parliamentary and public support.

Mr. Mwiimbu further advised Mr. Lubinda and the PF to desist from cheating the Zambians that the government would move a motion to amend the Bill, saying any amendments to the current Bill can only be done at Committee Stage after the second reading in accordance with parliamentary procedures.

He said it was the UPND’s strong belief that the Bill will not pass the second reading in its current form.

“We don’t trust the Patriotic Front and we shall never trust the Patriotic Front because they are not trustworthy. In 2011, the PF walked out of the House during the Constitutional making process. We applauded them because we understood that they were exercising their democratic right to do so then. The PF is also on record to have expelled 23 of its serving MPs for supporting the constitutional amendment process. Why should they today want to demonize UPND MPs for exercising their right not to support the constitutional process? We know that any PF MP that would vote against the Bill will face disciplinary measures. This party is very undemocratic. But that is not our concern. Our concerns are the Zambian people and we as the UPND would like to assure them that we have their best interest at heart”, he added.

Yesterday, a consortium of civil society organisations called on all Members of Parliament not to shun the process when the Constitution Amendment Bill number of 10 is presented to parliament for the second reading tomorrow.

Speaking at a joint press briefing of Civil Society Organisations on the Constitution of Zambia (Amendment) Bill 10 hosted by Misa Zambia in Lusaka yesterday, SACCORD Executive Director Boniface Cheembe called on MPs to fully participate in discussing and amending the bill.

Mr Cheembe said all MPs should be in parliament tomorrow when the bill is tabled until it is refined instead of walking away from the house.

He stated that those opting to walk away must remember that they will be denying the voice of those voters who elected them to be in parliament in order to make laws on their behalf.

He noted that MPs should be mindful that the constitution is for all the 17 million Zambians who are represented by the 167 MPs.

“As CSOs, we therefore call on our Members of Parliament (MPs) to recognize that they are legitimate representatives of the 17 million Zambians when it comes to altering our constitution. Our MPs must discharge this onerous but noble duty by participating in debating Bill 10 and cleaning it up to represent the views of the people who elected them to come and make laws from our Parliament,” Mr Cheembe stated.

He explained that the constitution which MPs will be debating is not for any particular party, CSO or individuals but an embodiment of the aspirations of all the people of Zambia regardless of tribe, ethnicity and political affiliation.

The Civil Society Organisations have since praised the decision by Cabinet to move proposals to amend the bill so that the final product can reflect the views submitted by those in support by those in support and against certain provisions of the bill.

Mr Cheembe noted that the civil society are aware that the Minister of Justice has today filed a notice of proposed amendments with the National Assembly which he said is commendable as it reflects that government is prepared to follow up on what they promised to amend the Bill at the Committee of the whole house.

He stressed that civil societies passionately wants to see the constitution which will increase the period of hearing a presidential petition from 14 to 30 days as proposed and wants the provisions that will allow women, youths and persons with disabilities to be represented in Parliament and councils among other clauses.

The Joint Press Briefing was held by SACCORD, MISA, Zambian Institute of Governance and Civil Liberties Advocacy Platform, National Youth Anti-Corruption Movement, Young African Leaders Initiative, Common Grounds Network and Constitutional Reform and Education Coalition.

By Sishuwa Sishuwa

On 13 March 2020, the Judiciary’s Acting Chief Registrar, Prince Boniface Mwiinga, announced that prominent constitutional law expert John Sangwa would no longer be allowed to appear before any court in Zambia. In a notice to all judges of the Supreme Court, Constitutional Court, Court of Appeal, High Court, Registrars and Magistrates, Mwiinga stated that the action followed “a complaint of professional misconduct made by the Judiciary to the Law Association of Zambia [LAZ] against the said Mr John Sangwa, SC”. What do we make of this move by the Judiciary?

The first point to note about Sangwa’s suspension is that it is void on grounds of procedural impropriety. The process for dealing with the misconduct of members of the bar is elaborate and provided for in Part IV of the Legal Practitioners’ Act. If anyone, including judicial officers, is aggrieved by Sangwa’s conduct, the correct procedure is for the aggrieved party to complain to LAZ for consideration of the grievance. The association, through its Legal Practitioners’ Committee, would then invite both the complainant and the concerned practitioner to whom the application relates for hearing. If a prima facie case is established against the respondent, the matter is then referred to the Disciplinary Committee, established under the Act, for further hearing.

The Disciplinary Committee may, after hearing the parties involved, and depending on the severity of the transgression, admonish or fine the practitioner, or recommend to the High Court that the practitioner be suspended or struck off the Roll. The court can only exercise the powers to suspend a practitioner on the recommendation from the Disciplinary Committee after all investigations and hearings have taken place. Now, what has happened in case of Sangwa is that the ‘Judiciary’, pre-determining his fate, started with the possible final adverse outcome before going through the mandatory process outlined above. This is prejudicial to Sangwa’s rights because an arm of the State is effectively trying to render whatever decision the Legal Practitioners’ Committee can make redundant.

The second point is that Sangwa’s suspension violates his constitutional right to be heard and secure protection of the law. Article 18 (9) of Zambia’s Constitution provides that “Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.” By taking an adverse position against Sangwa without according him the opportunity to be heard, the Judiciary committed ‘a bloodless coup’ against the Constitution and the basic principles of the rule of law. The Judiciary is neither infallible, above the Constitution nor beyond reproach. Judicial officers, more than anyone else, should know this. If the Judiciary, by penalising Sangwa, sought to encourage respect for the institution, they may have succeeded in achieving the opposite.

The third point that emanates from Sangwa’s suspension is in form of a question: who among the Judiciary was the complainant against him, the one (s) who will appear before the Legal Practitioners’ Committee for hearing? To suggest that it is the ‘Judiciary’ – an arm of the State and not a specific judge or court – is vague and misleading because institutions have no feelings to be hurt by the remarks of human beings. According to the Constitution of Zambia, the Judiciary consists of the Supreme Court, Constitutional Court, Court of Appeal, High Court, subordinate courts, small claims courts, local courts, and any other courts as prescribed by Parliament. Is the Judiciary’s Acting Chief Registrar telling Zambians that judicial officers of all these numerous courts met, sat down and decided, without according Sangwa the opportunity to exercise his constitutional right to be heard, that he should be barred indefinitely from appearing before any of them or their courts? Or is it the case that the Acting Chief Registrar is the complainant? If yes, what wrong did Sangwa do against the Acting Chief Registrar? Under what law or authority did the Acting Chief Registrar assume the role of complainant and judge to mete out the punishment? If the Acting Chief Registrar is not the complainant, then who directed Mwiinga to write the letter of complaint?

Assuming that Sangwa has been barred because of his argument that President Edgar Lungu dribbled Zambians when he appointed individuals who did not meet the constitutional requirements to serve as judges on the Constitutional Court: namely, specialised training or experience in human rights or constitutional law and 15 years’ experience as a legal practitioner, then there are three fundamental issues that arise. First, if the charge arose from this public criticism of the qualifications of Constitutional Court judges, one that may have been taken as attacks on the personal integrity of the individual judges, why is the complaint coming from the Acting Registrar of the Judiciary, not the individual judges themselves? Second, it is worth noting that this is not the first time that Sangwa is making this argument. He first raised it in 2016 when the current individual judges were nominated to serve on the Constitutional Court.

Sangwa even wrote a letter to President Lungu at the time, pointing out the noted shortcomings and asking him to reconsider the choice of his nominees. The President ignored him, and thanks to the ruling party’s majority in parliament, all six nominees were ratified. The question is, how is it possible that the same point that was not an offence in 2016 is now an offence? Now that they are confirmed judges, are the six individuals whose qualification to serve on the bench Sangwa had questioned now seeking to (ab)use their judicial positions to punish an active citizen who asks the hard questions, who proposes ways forward and who, from any position or none, acts as an agent or catalyst of positive action in dealing with the issues that matter most?

If the incompetence that some of the affected individuals have demonstrated in office or their judicial decisions is not deliberate, then Sangwa has been absolved by history. With the benefit of hindsight, we may now understand the poverty of some of the decisions that have come out from the Constitutional Court as a result of genuine lack of capacity: the judges are performing a role they are not qualified for. Third, were Sangwa’s comments that President Lungu corruptly appointed the judges of the Constitutional Court so grave that to keep him in practice would prejudice the legal profession and the public? In any case, did anyone from the Judiciary contact or seek audience with Sangwa before suspending him to confirm the accuracy of his views in any published story that may have motivated the decision to bar him? Or is the Judiciary simply out to gag critical voices?

The fourth point that arises from the indefinite suspension of Sangwa is that the Judiciary is now lawless, with terrible consequences on the rest of society. Let us assume that Sangwa, aggrieved with the decision of the Judiciary to bar him from appearing before any court in Zambia, wants to challenge the action in court on the basis that it violates his right to be heard. Does the ban extend to his choice to represent himself since citizens have a right to represent themselves in a court hearing? If it does, which body should Sangwa approach to challenge the violation of his right to be heard with himself as his legal counsel, since, in the absence of private courts, he only has public courts – that have all banned his right to Practice – to turn to? Where would he seek legal redress if members of the Judiciary, the custodian of the law, are themselves the violators of the law? The Judiciary is manufacturing lawlessness.

Sangwa’s suspension also demonstrates the breathtaking hypocrisy of the Judiciary when it comes to public criticism of judicial officers or their decisions. Why should Sangwa’s criticism of, say, the Constitutional Court judges attract punishment without being heard when President Lungu’s criticism of the same court or judges, his interference with their work, or refusal to obey their judgement, has not attracted any repercussions? If the argument is that Sangwa is a lawyer, Lungu is also one. In any case, Article 118 of the Constitution obliges the Judiciary to exercise judicial authority without discrimination; it says justice shall be blind and done to all. So why should Sangwa, who is a citizen before he is a lawyer, be discriminated against and denied his constitutional right to be heard and represent himself on the basis of his profession? When barring Sangwa, on whose behalf was the ‘Judiciary’ exercising that power – on behalf of individual judges or on behalf of the people as mandated by the Constitution?

The final point to be said about Sangwa’s suspension is that the real reason why he has been barred may have to do with his principled opposition to President Lungu’s third term bid. In recent months, Sangwa has been a strong critic of the proposed Constitution of Zambia (Amendment) Bill Number 10. He has also maintained that Lungu does not qualify to seek another term of office. In other words, the decision to bar Sangwa indefinitely is most likely linked to his defence for the protection of term limits coupled with Lungu’s efforts to eliminate someone he probably sees as the stumbling block to his all-consuming desire to secure a third term. In the event that Lungu does not succeed in his plans to push through Bill 10 – his main lifeline for re-election – there will likely be a legal challenge to his nomination, once filed in line with Article 52 of the Constitution, to stand as Zambia’s President next year.

By barring Sangwa, Lungu may be using the Judiciary to eliminate a likely counsel for whoever might oppose his nomination out of the fear that Sangwa’s great mind and expertise on constitutional law could lead to a successful legal challenge, one that would result in the fatal disqualification of the ruling party’s presidential candidate. It is indeed possible that LAZ may itself challenge the constitutionality of Lungu’s presidential candidacy next year once he has officially filed his nomination. Were that to happen, Sangwa is likely to be the association’s lawyer. He has previously represented LAZ on several high-profile cases relating to the defence of the Constitution such as the case of ministers’ illegal stay in office, the constitutionality of the deplorable Bill 10 and the unresolved matter of whether Lungu is eligible to stand for another term. Sangwa has also exhibited genuine loyalty to principle, inspiring bravery, and has been unrelenting in his demand for the Judiciary to provide reasoned judgements. In this instance, Lungu may be using the courts to supress criticism of the Constitutional Court in particular, criticism that has the potential to encourage the judges to display greater independence from the executive and stick to the rules of the game.

Another possibility is that Lungu could be using the Judiciary to bully LAZ and weaken its opposition to his ongoing unconstitutional manoeuvres and efforts to liquidate democracy by intimidating one of the association’s shining lights and making him an example of the perils of standing up to power. In fact, principled LAZ members and Zambians in general should not be surprised if they woke up tomorrow and learnt that Sangwa has been summoned for contempt of court and consequently handed a punitive jail sentence out of this ridiculous case in order to keep him away from the courtroom. Such is the desperation of the ruling elites. LAZ, which was easily manipulated by the Patriotic Front (PF) into publicly condemning Sangwa – for allegedly “questioning the qualifications, integrity, propriety and impartiality of the Constitutional Court Judges” – hours before the complaint from the Judiciary reached its secretariat, has put itself in an awkward position. Now that the matter is before LAZ, would Sangwa be heard and his case concluded before the 4 April 2020 elective Annual General Meeting – at which the PF intend to completely capture the body by advancing ruling party supporters to run and render it totally ineffective? Or would LAZ immediately ask for a reconsideration of the defacto suspension of Sangwa’s right to Practice? If the case remains undetermined by 4 April, it is probable that a thoroughly captured leadership, which could emerge from the LAZ elections, may recommend that Sangwa be removed from the Roll, however innocent he might be.

Argh, it is a disaster this thing called “Zambia”, right now, one that makes my blood boil.

Zambia’s electricity utility, Zesco, recently warned of increased loadsheding of up to 12 hours as power generation deficit has risen by nearly 20% since September, despite massive price hikes.

This is largely a drought-inflicted power shortages owing to low water levels at Kariba which in March this year was only 12% full, compared with 43% at the same period previous year against an ideal capacity of 69%.

Zesco’s Director of Corporate Services Patrick Mwila told a press conference that electricity deficit had grown to 810 megawatts (MW) from a 690 MW gap in September.
He said a contract to get 300 MW from South Africa’s Eskom which is also in the woods had expired and would not be renewed.

“Zesco was now relying on short-term power imports from the Southern African Power Pool (SAPP) to plug the deficit,” he said.

Zesco has already used 25% of the water that it was allocated for power generation this year by the Zambezi River Authority, which manages the river on behalf of Zambia and Zimbabwe, he said.

“It is important that the water resource is prudently managed to guarantee power generation,” Zesco’s director for power generation Fidelis Mubiana said at the same briefing.
Meanwhile, Zambia Institute for Policy Analysis and Research (ZIPAR) research fellow, Caesar Cheelo warns that the country’s currency would succumb to the pressures and would continue to fall.

He said the electricity shortage would contribute to the weakening of the local currency adding that since the country is relying on imports to bridge the gap it would put pressure on the balance of payments. Adding that this was compounded by huge foreign debt.
He said because of the underlying factors Kwacha will lose 13 per cent of its worth.
Cheelo urged government to change its priorities list and fund first the sectors that bring quick returns, such as the production lines as opposed to infrastructure development. “If we are choosing railways or roads, how much productivity is yield compared if you set up a factory that is responsible for domestic production? How much productivity will the railways and roads contribute compared to any energy project that stabilises energy supplies power supply?

“A lot of issues have to do with our fiscal choices in public expenditure, our public investment where do we preferably put them as a country?” He queried maintaining that debt servicing was exerting pressure on the local currency.

In a recent Ministerial statement, the Minister of Energy, Matthew Nkhuwa, confirmed the power shortage saying it is putting pressure on economic activities thereby undermining local production and capacity utilisation.

The other factors putting pressure on the local currency include the country’s wage bill, reduced agricultural output because of droughts and reduced industrial productivity and the under-performing manufacturing sector, among a host of other things.

In 2002, Zambia experienced a shortage of food due to low production of maize as a result of two years of drought.
There was an acute hunger situation in Zambia, it was bad but not as severe as the one experienced in 2019/2020.

This was the first year of the Levy Mwanawasa presidency.
In order to help mitigate this problem, President Levy Mwanawasa and his Agriculture Minister Mundia Sikatana launched what was termed ‘The Winter Maize Project’.

The underlying thought and concept was that Zambia did not need to wait for the rains to plant maize, maize could be planted and watered through irrigation throughout the year. The result of this is that Zambia would no longer have deficits of maize, the country’s food staple.

We remember that when Levy Mwanawasa initiated this project, he was laughed at and ridiculed by many, he was mocked and many said it was too costly and too expensive to grow maize in the winter.

The winter maize project was launched in 2002, with maize being planted in May and harvested in October.

By 2003, the winter maize project was yielding 800,000 tonnes of maize per annum.
The winter maize project was a huge success.

However at the death of President Mwanawasa in 2008, the new government of President Rupiah Banda ended the winter maize program, it has never been revived since.

But in hindsight, Zambians should appreciate that Levy Mwanawasa had foresight and a good vision when it came to the winter maize program, his thinking was far ahead of its time, his kind of thinking was genius.

While winter maize can be expensive to grow, it also matures and is harvested at a time when maize prices are at their highest, because supply is at its lowest, so this concept is workable.
Moreover, government should be obliged to subsidize farmers who grow winter maize, and the FRA should offer a higher buying price for winter grown maize.

To cushion the costs of growing winter maize, farmers who participate in this program can be given a license to export 40% of their produce to Congo, where the price is 4 times higher than in Zambia, this would be a good incentive to have more farmers to participate in this program. This way farmers can make a healthy profit from growing winter maize.

The growing of winter maize can effectively eliminate hunger in Zambia and can help in reducing high mealie meal prices.

It’s about time that this idea was revisited, the ZNS, Prisons Service, Commercial farmers and indeed small scale farmers can be co-opted into the program. Generators for irrigation purposes are now generally affordable and the government can provide subsidized fuel for irrigation purposes for those who participate in a winter maize growing program.

With the right leadership, this concept and vision can be realized. -NDC

Senior Chief Mukuni of the Tokaleya people of Kazungula district in Livingstone has demanded for the unconditional lifting of the suspension of Lusaka Lawyer John Sangwa from appearing before any Zambian Court.

And Chief Mukuni has called on all traditional leaders in Zambia to offer solidarity to Mr. Sangwa as his suspension is unfair and unjust.

Chief Mukuni has described Mr. Sangwa as a patriot, a man of logical mind, a defender of the constitution and the rule of law.

In a statement, Chief Mukuni said Mr. Sangwa’s selfless act in the face of naked aggression and persecution by the state machinery, political party functionaries and surrogates, inspires hope and direction for the country that has reeled backwards in areas of constitutionalism, civil and political liberties.

He said Mr. Sangwa’s resolute fight transcends the pettiness of politics, partisanships and patronage.

The Traditional leader said Mr Sangwa has raised the bar for Zambians, especially the young citizens to emulate and pursue.

Below is the full statement

Press statement for immediate release from Senior Chief Mukuni

15th March 2020

TRADITIONAL LEADERSHIP MUST SUPPORT JOHN SANGWA SC

I wish to call upon my collegues their Royal Highnesses across the Republic to offer solidarity to a patriot, a man of a logical mind, defender of the constitution and the rule of law, John Sangwa SC, for his unequivocal and courageous resolve to stand on the side of the people, by defending democracy and civil liberties of all our citizens. John Sangwa’s suspension by the Judiciary from practicing his law is unfair and unjust and should be lifted immediately.

Counsel Sangwa’s selfless act in the face of naked aggression and persecution by the state machinery, political party functionaries and surrogates, inspires hope and direction for our country that has reeled backwards in areas of constitutionalism, civil and political liberties and shared values on which our nation was founded upon.

Mr John Sangwa’s apolitical and resolute fight transcends the pettiness of politics, partisanships and patronage, it is a fight for the survival of the collective character of this nation that exceeds artificial barriers of race, ethnicity, gender, religion and other narrow sectarian interests. He has raised the bar for our people, especially our young citizens to emulate and pursue. He and other like minded brave patriots must be supported by all peace loving citizens.

There can be no prosperity and progress for any nation whose government does not place constitutionalism, the rule of law and impartial pursuance of public order at the centre of its existence. All Traditional leaders must therefore support any effort that promotes the rule of law and the enjoyment of peaceful coexistence by their subjects.

We must speak with one voice, against the abuse of the institutions of governance by those who are vested with priveleges and responsibilities to govern. This is what John Sangwa SC is advocating for, this is why he needs our collective support by ensuring his arbitrary suspension from appearing before the courts of law, is unconditionally lifted.

God bless you and may He bless the Republic.

Senior Chief Mukuni of the Leya people of Kazungula, Livingstone and Zimba Districts and all the Bene Mukuni.

They say it’s darkest before dawn, it doesn’t ring more true than for the nation of Zambia.

Like a woman with birth pains, the nation experiences excruciating pain before the birth of a new time, a time of hope, a time of peace, a time of unity, a time of justice, a time of prosperity and a time when the people finally set aside trivial differences of ethnicity and regionalism that have divided the nation for decades.

A time comes when the nation’s ethnic diversity shall no longer be used as a wedge to divide the people and set them one against the other.
Instead the rich diversity of the 72 peoples that God has placed on his land will become a source of strength and celebration, each considered equal and each playing a pivotal role to achieve a common prosperity.
In each of the 72 peoples, God has placed a unique skill and talent in each that the other does not have but the other needs.

To achieve prosperity, they will have to work in tandem with each other just like body parts do, for the mouth to feed, the hand has to give it the food.

The one placed in the north toils the soil to grow the maize that the one in the south will eat, the one in the south raises the livestock that the one in the north will eat, the one in the north west mines the mineral that will provide the wealth for the trade to take place while the one in the west and the one in the east also toils the soil to provide a different variety of crop that the others cannot grow.
Together and jointly they become a functioning unit, a family, a society and a nation.

In 485 days time, the sun will rise in the east. Zambians from all walks of life will wake up to a new day, a day of judgement but also a day of hope and opportunity to chart a new future.
From north to south, east to west, Zambians from all corners of the country will line up in Long queues to render judgment.

Judgment on the fire tenders.
Judgment on Mukula.
Judgment on Bill 10
Judgment on the economy
Judgment on load shedding
Judgment on fuel prices
Judgment on mealie meal prices
Judgment on the FIC report
Judgment on the 49 houses
Judgment on high taxes
Judgment on political violence
Judgment on corruption
Judgment on the erosion of human rights
Judgment on unemployment
Judgment on the Kwacha
Judgment on tribalism
Judgment on incompetency
Judgment on debt
Judgment on cost inflated projects
Judgment on cadreism

By the time the sun sets in the west at 6PM, a verdict would have been rendered.

Within 48 hours, a verdict of GUILTY on the incumbent will be read out.

He will be required to leave the seat immediately and Zambians will install another leader of their choice, a leader of national consensus and a unified government of Zambians of all walks of life, coming together to deliver the nation from a pit of evil and drive the nation into prosperity and unity.

485 days it is, do not lose hope, do not despair, a new day is coming 💥💥💥🇿🇲🇿🇲🇿🇲

Copyright @ NDC MEDIA 15.03.2020

By Amb. Emmanuel Mwamba,

We couldn’t keep or hide his sickness any more.

It was 2006 and Dr. Chiluba was gravely ill.

Although to the public he was well and attended legal and court processes, he was battling illnesses that I became aware of since 2004.

During this period, Second President, Dr Frederick Chiluba was facing corruption allegations, his constitutional immunity had been lifted in July 2002, he lay isolated and without help. His repeated requests to seek medical treatment abroad was rejected again and again.

Both his personal doctor and those others he saw all recommended that he should be allowed to seek medical treatment abroad.

We tried various channels to enable Dr. Chiluba seek medical treatment.

This was a constitutional entitlement as a former Head of State.

We used the process through Cabinet Office, we made the requests through the Courts but no avail!

“Its an excuse, he wants to flee the country, he wants to run away from the charges” they mocked Dr. Chiluba in newspapers.

In February 2006, Chembe Member of Parliament, Hon. Dalton Sokontwe, a fierce Chiluba loyalist, called me very early in the morning.

He demanded to see me urgently.

President Mwanawasa had fired Sokontwe as Deputy Minister because he refused to stop seeing and visit Dr. Chiluba (and his letter of dismissal stated so).

They also accused him of organising traditional authorities and MMD members on behalf of Dr. Chiluba for the Opposition Patriotic Front.

I quickly met Sokontwe.

“Shi Mwamba, bakateka balatufwila( Shi Mwamba, the(former) President will die while we do nothing)”. He said in blunt but serious tone.

” I have a plan. We are doing this without Dr. Chiluba’s or Mrs. Regina Chiluba’s knowledge “. He informed me.

He said this because Dr. Chiluba had repeatedly refused to speak to President Mwanawasa or his close associates over his illness and on the need to seek medical treatment abroad.

“We have to approach (President) Mwanawasa immediately!”

At that stage, the relationship between the President and his predecessor was at its worst.

Dr. Chiluba was appearing in Court facing various corruption charges.

” I think we have a senior man we can see and can help.” He said.

“Let us go and see Dr. Kalombo Mwansa, and relay this serious message” Sokontwe said, stating it in a manner that he had thought through the issue.

Dr. Kalombo Mwansa was Minister of Defence at the time.

We immediately went to the Ministry of Defence Headquarters and we were lucky to see Dr. Mwansa at short notice and without prior appointment.

By lunch hour, a message came that we should prepare Dr. Chiluba as President Mwanawasa, would pay an impromptu visit, probably the first such visit since 2002.

Offcourse the two would meet during this period, at public functions or funerals, but a visit like this would be the first.

Sokontwe was right, he had picked on one to relay the message in a credible, urgent and impartial manner and yield results.

I informed Hon.Sokontwe and we both rushed to Chiluba’s residence.

The Chiluba’s were shocked as we relayed both our audacious plan and immediate results- President Mwanawasa was on his way to the residence!

And as informed to us, President Mwanawasa, the First Lady Maureen Mwanawasa, Aides and Ministry of Health Permanent Secretary, Dr. Simon Miti and others descended on Chiluba’s residence on Serval Road Kabulonga fripped with fear and empathy over the illness of Dr. Chiluba.

Two days later, We were in South Africa with Dr. Chiluba admitted to hospital for specialised medical treatment.

“This man is extremely unwell, his cardiac condition critical. Had he come a few day later or week later, he probably would be dead by now” said the Professor treating him.

So when I heard the death of Prof. Kalombo Mwansa, I was broken as I remembered how he looked at matters in a professional and sober manner and took political risks to serve mankind…

His humility was remarkable, one of the few Zambian lawyers with education from both the prestigious Harvard University and Cambridge University.

For I can confidently say that God used him to save the life of Dr. Chiluba in 2006.

May his soul rest in eternal peace.

By Prof. Kenneth Mwenda

After much reluctance, I am somewhat compelled to respond to the call of many good friends, colleagues and well-wishers who have been asking me lend my voice to the current constitutional debate in Zambia. At the outset, I must state that I am not here to cause trouble or to take any political sides. Mine is purely an intellectual contribution.

In examining the issue of presidential term-limits in Zambia (and elsewhere), let us take a comparative and international perspective to inform the discourse more thoughtfully.

(1) Presidential term-limit in Russia:

Article 81 of the 1993 Russian Constitution provides that:

“1. The President of the Russian Federation shall be elected for six years…
2 ….
3. One and the same person may not be elected President of the Russian Federation for more than two terms running.”

Now, what does Article 81 of the Russian Constitution mean? Indeed, let us take a more reasoned look.

Under Russia’s 1993 Constitution, the President can serve for two consecutive terms. And each term runs for six years. But the said constitution does not stipulate the total number of terms that a President can serve. So, a former president can seek re-election after ‘cooling off’ for one term and then bouncing back as President. Indeed, you can keep ‘cooling off’ after every two terms and then bouncing back. Nothing stops you from doing so.

(2) Presidential term-limit in the USA:

Section 1 of the Twenty-Second (22nd) Amendment of the US Constitution provides as follows:

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once…”

Now, what does this US constitutional provision entail? Again, let us take a more reasoned look.

The US Constitution, unlike the Russian one, does not talk about ‘more than two terms running’. Rather, it simply bars any person from being elected to the Office of President more than twice. So, in the case of the US, there are two possibilities. An individual can serve two presidential terms in the US consecutively (i.e. one running immediately after the other) or ‘cool off’ after only one term, and then run again for second term later. Yes, one can serve a single presidential term in the US, and then ‘cool off’, that is, if he or she chooses to do so, before bouncing back for one more single presidential term. Indeed, the US Constitution does not stop you from doing so. But that person cannot exceed two terms in total. The US Constitution also spells out what constitutes a presidential term in the event that an individual adopts and serves part of that term to complete his or her predecessor’s presidential term.

Indeed, the US Constitution states explicitly that ‘no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.’ Now, this is where the Zambian conundrum enters. And I want to make the analysis here very simple and easy for any layman or pedestrian to follow. Let us turn to the case of Zambia.

(3) Presidential term-limit in Zambia:

Article 106(1) of the Constitution of Zambia, as amended in 2016, provides that:

“The term of office for a President is five years which shall run concurrently with the term of Parliament, except that the term of office of President shall expire when the President-elect assumes office in accordance with Article 105.”

It is at this juncture that the debate enters about distinguishing the words a ‘term of office’ from ‘holding office’. Indeed, Article 106(2) and (3) of the Zambian Constitution provides that:

“(2) A President shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office.
(3) A person who has twice held office as President is not eligible for election as President.”

Against this background, can we say that ‘holding office’ and ‘term of office’ are two different things? If so, what are the legal implications? If not, what is the way forward, given that there is no appellate court above the Constitutional Court? And does the concept of ‘constructive ambiguity’ in legislative draftsmanship play a role here? Or, could it be a case of rushed legal ordering of the political economy by the legislative draftsman? What can we learn from the constitutional provisions of the US and Russian constitutions on the matter?

In Zambia, Article 106(6) of the Zambian Constitution continues:

“(6) If the Vice-President assumes the office of President, in accordance with clause (5)(a), or a person is elected to the office of President as a result of an election held in accordance with clause 5(b), the Vice-President or the President-elect shall serve for the unexpired term of office and be deemed, for the purposes of clause (3)—
(a) to have served a full term as President if, at the date on which the President assumed office, at least three years remain before the date of the next general election; or
(b) not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election.”

Again, do the words a ‘term of office’ and ‘holding office’ mean the same thing? Then enters the Dan Pule case before the Constitutional Court of Zambia, with various commentators seeking to find out if the constitutional nomenclature pertaining to ‘holding office’ and ‘term of office’ are synonymous or not.

Now, in the Socratic method of law school teaching, we do not spoon-feed anyone with answers. Rather, we raise issues for people to think through. So, if you are looking for answers here to affirm or disaffirm the ruling of the Constitutional Court, you are in the wrong place and on a wrong forum.

Such is not the intended purpose of this contribution. Rather, we seek to stimulate critical thought around the legal issues surrounding this debate. So, let the debate begin, with decorum and well-reasoned submissions. Indeed, emotive or partisan outbursts are not arguments at all. Thank you!

Prof. Kenneth Mwenda is a distinguished thought leader and public intellectual. He read law at Oxford as a Rhodes Scholar.

The Young African Leaders Initiative (YALI) has cautioned the public in their commendation of UPND and it’s leader Hakainde Hichilema in their role to provide checks and balances which have enabled Government, through Cabinet, to respond and propose amendments to Constitution of Zambia Amendment Bill.

During a media briefing on Saturday, YALI Governance and Legal Advisor, Isaac Mwanza, said the history of the UPND under Mr. Hichilema is to never support the constitution-making process, including the process they participated in 2010 and later collapsed in 2011.

“What remains to be seen is whether Mr. Hichilema will now provide leadership to his party MPs to support amendments which the Government intends to propose on the floor of the House. We are cautiously optimistic that he shall do so, bearing the history,” said Mr. Mwanza

He charged that Mr. Hichilema would not want anyone to take credit for enacting a Constitution which would allow youths, women, and persons living with disabilities to be represented in decision making and yet that has been a call these marginalized groups have been sounding for decades.

“The UPND and its MPs must remember that cleaning up this Bill and enacting it into law will ensure we have 30 days to hear a presidential petition in 2021 and beyond for any party that may be aggrieved after elections.”

He said Bill 10 must bring sanity into the Councils where Members of Parliament should have a say in managing developmental projects and making bye-laws that affect their people.

YALI has commended Cabinet for making a Government position known as regards public recommendations to amend the Constitution of Zambia Amendment Bill No. 10 of 2019.

“We believe the gesture by the government is a sign that it has been listening to this debate from those like us who crafted and supported Bill 10 and those who have been against certain provisions of Bill No. 10”

YALI has to join Government in commending voices who spoke against the Bill and those who championed for its current provisions.

“Our call is for UPND MPs and it’s leaders to show sobriety and participate in the process that must help the nation move forward. Our constitution is not perfect and there is no perfect constitution around the world. This is why Constitutions, even the oldest Constitution in the world, has undergone amendments until the 1990s,” he said.

The United Nations has lambasted the Zambian government for the suspension of Constitutional Lawyer John Sangwa saying basic principles were violated, reports Zambian Eye Correspondent.

This follows an outcry from many quarters over how the state handled the matter. The Judiciary has barred Sangwa from appearing on any court in Zambia accusing him of having issued disrespectable remarks against Judges during his Television discussion program.

The UN Special Rapporteur on the Independence of Judges & Lawyers, Diego García-Sayán, condemned the suspension.

“I strongly condemn blatant violations of human rights against Mr John Sangwa. Lawyers must be independent and preserve his lawyer’s professional and intellectual independence with regard to the courts and professional colleagues,” he said.

Meanwhile, the American Bar Association Center for Human Rights (ABA justice defenders) says a hearing should have been carried out to determine the lawyer’s fate.
“Suspension of Zambia lawyer John Sangwa without a hearing raises serious due process and freedom of expression concerns,” says the defenders for justice.

Sangwa has been a strong critic of the proposed constitutional amendment especially Bill number 10. He has also publicly stated that incumbent President Edgar Lungu does not qualify to run in 2021 polls because he has already twice elected as provided by the Constitution.

“The UN Basic Principles on Lawyers stipulates that lawyers like other citizens are entitled to freedom of expression and to take part in matters of public interest. International standards also provide that only in exceptional circumstances must a lawyer be immediately suspended,” says ABA.

Sangwa was suspended for alleged misconduct. “This serves to inform all the Hon. Addressees that by the direction of the Judiciary Mr John Sangwa S.C, an advocate practising under the firm of Simeza, Sangwa and Associates will not longer be allowed to appear before any court in Zambia until further notice.

“This action has been taken following a complaint of professional misconduct made by the judiciary to the Law Society of Zambia against the said Mr Sangwa, SC,” reads the letter signed by Boniface Mwiinga, acting registrar and director of court operations.
Meanwhile, section 29 on disciplinary powers of Court or judge apart from inquiry by disciplinary committee states that:

“Nothing in this Act contained shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the Judges of the Court to deal with the misconduct or offences by practitioners.”

The Lusaka High Court has ordered the Zambia Police Service to avail Chingola businessman Kabaso Mulenga, popularly known as Spax, before court on Monday following his application for habeas corpus.

Spax has sued the Attorney General in the Lusaka High Court, seeking leave to issue a habeas corpus directed at the police to either release him or take him to court because he has been in custody since February 26, 2020 without charge or being taken to court.

High Court judge Wilfred Muma has ordered that Spax be taken to court on Monday and that the position is such that the State should have complied with the demands sought in the writ of habeas corpus.

He said that there was no
requirement for the State to acquire instructions as the order to take Spax to court is inherent in the writ.

Last week Friday, Spax applied for habeas corpus, saying since his arrest, he has only been warned and cautioned on suspicion of murder of a Mr. Emmanuel Mapunda Chibwe by officers from crime one police where he was also advised that he was being investigated in relation to a case of murder and use of military combat without authority.

He has alleged that the police are vindictive and abusing their powers by declining to release him or charge him or taking him before a competent court because from the time of his arrest, he has not been charged or taken to court.

“My continued detention without being charged is not only unjustifiable but also unlawful as it is unconstitutional in that fundamental and connotational guaranteed rights to freedom and liberty are being blatantly violated and unfairly prejudiced,” he submitted.

When the case came up before judge Muma today, Spax was, however, not before court and the judge wondered why he was not taken.

State advocate, Mr. D. Mwewa then informed the court that the State was served with the writ on March 11, 2020 by Spax’s lawyers and they immediately sought instructions from the client which they are yet to obtain and asked for an adjournment.

Mwewa said because Thursday was a public holiday, this caused the delay in obtaining instructions but noted that the State was alive to the fact that Spax’s application was urgent.

But Spax’s lawyers Iven Mulenga and a Mr. J. Sinkala, objected to the
State’s application, saying it was their considered view that before Mwewa could make an application, it must be established if the
State had complied with the order of the Honorable Court to have Spax availed.

But Mwewa said he did not have instructions and has since
written to his client, the Ministry of Home Affairs, the reason why he has sought the shortest adjournment.

Ruling on the application for an adjournment, judge Muma agreed with Spax’s lawyers that he needed to be availed in court but granted the adjournment to Monday and urged the State to comply with the demands sought in the writ of habeas corpus.

A Lawyer has called on the Law Association of Zambia to suspend Constitutional lawyer John Sangwa for allegedly pouring scorn on the Constitutional court judges.

Mr. Tutwa Ngulube said that the association should send a strong message on the need for lawyers and all affected parties to respect decisions of the Judges.

Mr. Ngulube’s comments come in the wake of the Judiciary’s decision to bar Mr. Sangwa from appearing before any court while his matter is being considered by the Law Association of Zambia.

He has also proposed that the government should consider stripping Mr. Sangwa of the status of State Counsel.

Mr. Ngulube’s comment follows LAZ’s decision to condemn the stance that Mr. Sangwa has taken after losing a case where he had questioned President Lungu’s eligibility for 2021.

Last week the Judiciary banned Mr. Sangwa from appearing before any court in Zambia pending determination of his case by LAZ.

Meanwhile, PF Deputy Media Director Antonio Mwanza has welcomed the decision by LAZ to condemn the utterances of Mr. Sangwa against Constitutional Court Judges.

Mr. Mwanza said that LAZ should not allow any of its members to ridicule Judges for cheap political mileage, saying that the decision of the Constitutional Court is final and is now part of the Zambian law.

The PF Leadership in North-Western Province has welcomed the decision by the Judiciary to ban Lusaka Lawyer John Sangwa from appearing before any court in Zambia.

And Provincial Chairperson Jackson Kungo said Mr. Sangwa should not be allowed to appear before the people that he is allegedly disrespecting in public.

Mr. Kungo said that it was surprising that when the Constitutional Court ruled that Ministers who remained in the office should pay back the salaries they obtained, Mr. Sangwa and his friends did not call the Judges names, and that Mr. Sangwa is a bad loser who does not want to accept that he lost a case in which the Constitutional Court ruled that President Edgar Lungu is eligible to stand in 2021.

Mr. Kungo further said that it is sad that some people who are scared of President Lungu have resorted to all sorts of tactics to distract the PF from focusing on important national issues.

And New Congress Party President Peter Chanda has commended the Judiciary for banning Lusaka Lawyer John Sangwa from appearing in court in Zambia.

Pastor Chanda said that the move is commendable because the country’s institutions must be respected and that Mr. Sangwa cannot continue disregarding the court Judgement to the extent of attacking individual judges.

By Hon. Bowman Chilosha Lusambo

MEALIE MEAL SHORTAGES: PURELY ARTIFICIAL AND MAN MADE

We conducted a very successful operation to ascertain the root cause of this mealie meal supply problem in Lusaka.

We started our tour at Shoprite Kafue Road outlet and we ended up visiting Shoprite SoS and we intercepted a number of young boys who have been engaged by unscrupulous businessmen to buy the commodity in bulk from Shoprite after which they are selling at exorbitant prices in our compounds.

As part of our operation, these boys led us to one of the business persons involved in this illegal trade. From our investigations, we can report that this shortage of mealie meal is artificially induced and purely man made by criminal elements bent on tarnishing the good name of His Excellency President Edgar Chagwa Lungu. I have since engaged the Provincial Chairman to work with our party structures across the province and I will also be involving our District Commissioners to ensuring that this illicit activities is brought to an end.

As Lusaka Province Minister, I will not sit with folded arms and watch President Lungu’s name be tarnished by greedy business people.

NEMO JUDEX IN CAUSA SUA: FROM SAVENDA v STANBIC TO JOHN SANGWA, THE PEOPLE’S LAWYER

“Nemo judex in causa sua” (no-one is judge in his own cause). The universality and applicability of this principle of natural justice is beyond challenge in any progressive society of human beings who are in the land of the living. No one can ever reasonably sit as judge in a case in which he has an interest. It is repeatedly submitted in all jurisdictions that, “justice must not only be done, but must be seen to be done”.

Any proceedings, anywhere in the world, in which a court or tribunal sits to hear its own case as prosecutors and judges, must be stopped. If such proceedings were not stopped and judgment got delivered, then such a judgment must be rendered invalid. It ought to be quashed or remitted for an impartial re-hearing. This standard of justice was long established in 1544.

We, in the United Progressive People (UPP), are in shock, but not surprised, that after close to 60 years of Zambia’s political independence, our justice system still begs for reform. The current generation is paying the price of the biggest scandal of all times – Zambia does not have a Constitution. We don’t know how well we shall explain this to the citizens of Zambia.

UPP has for years been working very hard, within the limits of its resource envelope, to reawaken the consciousness of all Zambians across tribe and race to the reality that what we have been referring to as “The Constitution of Zambia” is NOT a constitution. What we have is Schedule Two of an Order in Council, which order was issued as a subsidiary legislation by the Queen of England pursuant to the provisions of the Zambia Independence Act, Section 65 of the Laws of England.

Like all other former British colonies, our nation should have immediately after the proclamation of independence sat in a Constituent Assembly to craft and enact the Supreme Charter of the Land to put 100% a legal break to all the archaic colonial statues that still have an effect of law in our land.

Since when did it become illegal or contempt of Court for citizens in democratic society to discuss court rulings? Political parties, Churches, professional bodies, academicians, and the general populace are at liberty, in the enjoyment of free speech, to discuss matters of the judiciary, executive and legislature that affect their lives.

We, in the UPP, knew it that after the Savenda v Stanbic case, there are similar situations that will arise and more Zambians will pay the price. Courts shall continue to be abused by the appointing authority (the President) to settle political scores. These things have not started today, but we have continued to entertain such as normal.

The Chewas say, “chili pa muzhako chapita, mawa chili paiwe” (what affects your friend today will also affect you tomorrow). Yesterday it was Derrick Sinjela and Gregory Chifire, today it’s John Sangwa tomorrow it will be on you.

The media report that the distinguished Most Learned John Sangwa, SC, has been barred from appearing before any Court in Zambia must be followed by all of us, especially the youth across Zambia, with interest. What crime has the Most Learned John Sangwa, SC done to be barred? We wait to know the reasons.

To the youth of Zambia: take note that the next elections in 2021 will be about you! Nothing for the youth without the youth! #Calo #Cesu!

It’s time to arise from our caves to end all forms of tinpot dictatorship. Zambia for ALL of us and NOT for a few LOOTERS at the top!

#NoThirdTerm! #GoBack!

Saviour Chishimba
UPP PRESIDENT

#VOTE on the staff #Pankonto! for No PAYE; No Sales Tax; No Market & TV levies; No tolls on Public Roads; Land redistribution & houses for all Zambians.

#Kululazambia!
#OrganisingForChange!