REGISTRAR OF SOCIETIES MERELY COMPLIED WITH A COURT ORDER-LAZ
● the state is interested in legitimizing the actions of one faction of the Patriotic Front over the other, even when the matter is yet to be finally determined by the courts of law, in particular:
●The Speaker of the Nation Assembly proceeded to act on the instructions of one faction, and effected changed to the leadership of the National Assembly, even when fully aware the matter was contested among the parties in the courts of law.
●LAZ will therefore move the Constitutional Court to make pronouncements on the procedure for electing the leader of opposition to bring the much-needed clarity, especially that precedence does not appear to be adhering to the requirements of the Constitution.
●We are also aware, that the Registrar of Societies, Mrs Thandiwe Phiri Mhende, is subject of a subpoena issued by High Court Judge Honourable Justice Mr. Timothy Katenekwa and pursuant to the said subpoena, she produced a register for the office bearers of Patriotic Front which shows that there were no changes.
●We want to be categorical that a subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial, which summons must be obeyed, failing which the person summoned can be punished by the court. It is therefore a compelling order which attracts punitive sanctions at the instance of the court that issued it.
THE STATE OF RULE OF LAW, DEMOCARY AND NATIONAL DEVELOPMENT IN ZAMBIA TODAY
The Law Association of Zambia (LAZ) is a creature of the Statute, being created by the provisions of the Law Association of Zambia, Chapter 31 of the Laws of Zambia. Section 4 of CAP 31 of the Laws of Zambia mandates the Association to champion the use of the law as an instrument of social order, social justice and as an essential element in the growth of Society.
Additional objects include to seek the advancement of the rule of law and of the rights and liberties of the individual, promotion of the improvement and reform of the judicial and administrative systems. As lawyers, we are subject to a precondition to our being allowed to practice law, being that we must publicly swear on the Bible, before the Chief Justice, to protect, preserve and defend the Constitution of Zambia. Article 8 of the Constitution we have sworn to defend prescribes our national values and principles to be:
(a) morality and ethics;
(b) patriotism and national unity;
(c) democracy and constitutionalism;
(d) human dignity, equity, social justice, equality and nondiscrimination;
(e) good governance and integrity; and
(f) sustainable development.
Mindful of our statutory obligation, and in furtherance of our moral and ethical duty as a body of lawyers, we have keenly followed the recent developments in the country which events have an impact on the rule of law, democracy and national development of the country.
It is for this reason that we cannot afford to remain quiet and have decided to hold this press briefing to share with the nation the Law Association of Zambia’s considered position on these matters.
(i) Increased arrests of members of Opposition Parties, without bail and not being taken before the courts of law expeditiously
1. Firstly, we find the increased incidents of arrests effected on Leaders of the Opposition Parties most unfortunate and counter-productive for the nation. While Leaders Opposition Parties, like all other citizens, must be held accountable when they breach the law in line with the rule of law, arrests which specifically target Opposition leaders critical of Government are an affront to the freedom of speech these citizens enjoy under the Constitution. What is further concerning is that these Political leaders when arrested, are not immediately released on Police Bond, despite the offences being bailable, and contrary to a progressive Presidential Directive to the Police to only arrest citizens at the conclusion of investigations and not to detain them any longer than is necessary. And even when arrested, their matters are never expeditiously, if at all, taken to the Courts of Law for prosecution so that allegations levelled against them are determined judiciously. This suggests that the arrests of Opposition Parties by the Police are merely an attempt to cower them into silence, something which is retrogressive in a democratic dispensation, ours is. The Inspector General of Police must ensure this comes to a stop!
(ii) Matters Surrounding the Patriotic Front, the largest Opposition Party in the country
2. With regard to the developments surrounding Patriotic Front, LAZ has previously stated its settled position that our democracy is only assured with robust political parties, both ruling and opposition, which promote national values and principles, have a national character whilst promoting and upholding our national unity. Further, that the exercise of the freedom of association and Assembly by citizens and their right to have a say in matters of governance cannot be fully assured without strong, democratic political parties.
3. LAZ therefore expressed its concerns with the happenings surrounding the Patriotic Front but was quick to point out the happenings do not justify interference by external stakeholders including state institutions.
4. Unfortunately, the conduct of various state institutions clearly demonstrates a narrative that the state is interested in legitimizing the actions of one faction of the Patriotic Front over the other, even when the matter is yet to be finally determined by the courts of law, in particular:
(i) The Speaker of the Nation Assembly proceeded to act on the instructions of one faction, and effected changed to the leadership of the National Assembly, even when fully aware the matter was contested among the parties in the courts of law. It is an established practice steeped in Commonwealth Parliamentary tradition that Parliament does not act on matters which are sub judice.
The Speaker should have insisted on being satisfied that ‘elections’ were held in respect of any changes to the position of the leader of the Opposition in Parliament, at the very least, on account of being fully aware different factions in the Patriotic Front Leadership, so as to protect the House from any potential embarrassment.
Additionally, Article 74(2) of the Constitution, on the procedure for election of the leader of opposition, requires that the opposition political party with the largest number of seats in the National Assembly must elect a Leader of the Opposition from amongst the Members of Parliament who are from the opposition.
Election of the Leader of Opposition is therefore not an internal party matter, but a Constitutional issue of immense public interest.
As the Head of the Legislature, the Speaker must ensure that the Constitutional requirements are duly satisfied by all person’s subject of her lawful authority in the House and wherever elections are required, the same are conducted transparently and in a publicly accountable manner in tandem with democratic principles.
LAZ will therefore move the Constitutional Court to make pronouncements on the procedure for electing the leader of opposition to bring the much-needed clarity, especially that precedence does not appear to be adhering to the requirements of the Constitution.
(ii) However, we call on the members of Parliament to accord Madam Speaker the requisite respect for her constitutional role of ensuring order in the House. No one gains, in fact citizens who look to Parliament to enact laws and hold the Executive accountable lose, when Parliament is ungovernable.
(iii) We are also aware, that the Registrar of Societies, Mrs Thandiwe Phiri Mhende, is subject of a subpoena issued by High Court Judge Honourable Justice Mr. Timothy Katenekwa and pursuant to the said subpoena, she produced a register for the office bearers of Patriotic Front which shows that there were no changes. Following this production, the Registrar was surrendered to the Cabinet Office, which is never meant as a promotion in public service, and the produced register has purportedly been called into question by the Ministry.
We find this development very troubling and most unfortunate especially that there is insinuation that a subpoena issued by a court of law does not have force of law and can be ignored or disobeyed by a civil servant at will or that a court document subject of proceedings can be impugned outside the court room.
(iv) We want to be categorical that a subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial, which summons must be obeyed, failing which the person summoned can be punished by the court. It is therefore a compelling order which attracts punitive sanctions at the instance of the court that issued it.
(v) While we are not privy to the reasons for the surrender of the Chief Registrar of Societies, sentiments so far suggest that it could be attributable to her complying with the subpoena.
We condemn any acts of sanctioning civil servants for complying with court orders and summons from the courts of law. Such incidents have the danger of cowering public servants into doing illegal activities to please superiors, which conduct is injurious to citizens who are ultimately subject of civil servants’ actions. Rule of law demands that Government action must be based on legal principles, and those who comply with the law in their actions must be commended, not condemned.
(vi) Various statements from Government Officials suggest a preference for one faction of the Patriotic Front being recognized the legitimate leadership of the party of the other.
5. LAZ wants to repeat its call for Government Institutions to stop intermeddling in the internal affairs of a political party. Let the Court do its job and finally settle the disputes of warring parties.
6. Permit to take this opportunity to caution Opposition Party members from making unwarranted attacks on the judiciary and judicial officers, merely because they do not like or agree with decisions they make. The judiciary is the cornerstone of our society, charged with the sacred duty to interpret laws and settle disputes civilly, hence critical in the maintenance of the rule of law. Lets all support the judiciary in discharging its mandate, usually under tough conditions and without adequate resources allocated to it, and operating without the constitutionally guaranteed financial autonomy.
7. That said, courts do not operate in a vacuum and must be attentive to the challenges troubling society at any particular time. We therefore call on the Judiciary to expedite the resolution of political matters to diffuse political tension in the country.
(iii) Tolerance to Divergent Views
8. We also want to take this opportunity to urge Government to embrace divergent views. There have been numerous instances showing intolerance to views of stakeholders holding opinions different from the ruling party. Stakeholders with divergent views are accused of being biased, tribal or downright attacked as agents of evil, lucifers or drunkards. The maturity and strength of a Government is not judged by the absence of divergent views, but the level of its tolerance and magnanimity to those with such views. As wonderful as the notion of praise singing may sound, there is no choir, not even a cappella where everyone sings in one voice. It is an exercise in futility to expect 20 million citizens to have same views or only one viewpoint.
9. Citizens were excited when the defamation of the President’s law was repealed, as this was taken to be a signify Government’s commitment to welcome divergence of opinions but the contrary seems to be happening. Citizens are being arrested using cyber security and other penal laws because they have merely expressed views the Government does not like.
10. Article 4 of the Constitution proclaims us to be a unitary, indivisible, multi-ethnic, multi-racial, multi-religious, multi-cultural and multi-party democratic State. We are therefore inherently different but one. Let’s learn to co-exist and give everyone a chance to have a say on the affairs of this country.
(iv) Too Much Politicking in the country at the expense of National Development .
11. We have observed continued and increased politicking in the country as though we are about to hold General Elections. While citizens and political parties are at liberty to exercise their political and civil rights which include political activism, this must not be at the expense of national development. The country is currently grappling with numerous economic challenges which have resulted in increased cost of living, among other negative consequences, and it is the duty of all political leaders, ruling and opposition, to offer tangible solutions for the country to redress these challenges.
It is for this reason that Article 60 (2) of the Constitution imposes a duty on every political party to promote the values and principles specified in this Constitution, which values and principles include good governance and sustainable development. Citizens are therefore entitled to ask, in fact demand, for political leaders to offer tangible alternative solutions for the sustainable development of the country and good governance. It is archaic politics, and definitely not in the interest of citizens nor furtherance of sustainable development, for political players to stand hands akimbo, waiting for those entrusted to govern at any particular time to fail, without offering alternative solutions, so that they can be given the mantle to govern next.
(v) Public Order Act and Access to Information Bill
12. LAZ is pleased to note that Government has heeded the calls of the citizens and taken the Access to Information Bill to Parliament for enactment. As we have stated before, Access to information by citizens is an exercise of their constitutionally guaranteed rights and critical in holding Government accountable. This step is therefore commendable on the part of Government. We urge citizens to study the Bill and contribute to the enactment of a law that meets their aspirations. Make submissions to Parliament.
13. We must caution, that the commendation on the legitimate expectation will carry through the process to final enactment, and not as before, withdraw the Bill mid way. We also urge Government to ensure that once enacted, the law is not watered down by subsequent regulations and is applied in a fair and transparent manner to further, not fetter, the enjoyment of the constitutional rights.
14. However, access to information alone without redressing the challenges with Public Order Act will do little to redress the challenges citizens face in their full enjoyment of the constitutionally guaranteed rights and liberties.
15. We therefore urge the Government to quickly table before Parliament a bill to reform the archaic Public Order Act, Chapter 113 of the Laws of Zambia first enacted in 1955. LAZ is aware of the consultative process around the Public Gatherings Bill which is meant to replace the Public Order Act. Let Government finalize all the requisite internal processes and table the same before Parliament.
16. In the interim, we call on the Police to stop the abuse of the provisions of the Public Order Act to deny opposition members their right to protest on often cited ground of security concerns. Though the Public Order Act is archaic, it is its application in a manner which is neither transparent nor fair which we find inexcusable, especially that the Supreme Court has guided on its proper application, which guidance continues to fall on deaf ears in successive governments.
(vi) A call to collective action, for our collective progress, as a nation
17. Being one Zambia and indeed one Nation, we must collectively garner our collective effort and wisdom, bury the hate and differences, and galvanize our energies to find sustainable solutions for our collective progress as a nation. LAZ calls on the mother church bodies and civil society, in the country to urgently convene a national indaba of all political players and stakeholders to discuss sustainable modalities for the country to de-politicize, heal and come with solutions to economic challenges afflicting our society, thereby assure our sustainable development as a country. LAZ is ready, the body of lawyer stands ready to use their legal training and skills to ensure our society makes progress, in all its facets. But it cannot be done by one person. Like a noble eagle in its flight, we must all strive to fly above our differences and problems, together, for the sake of our land.
(vii) I thank you.
Dated this 15th November, 2023