SISHUWA SISHUWA RESPONDS TO LAURA MITI

SISHUWA SISHUWA RESPONDS TO LAURA MITI

Hello Laura!

I have read your response to my criticism of O’Brien Kaaba’s strange consent judgement with the man he only days ago called corrupt, Solicitor General Marsal Muchende. I welcome your response because, for me, the idea behind writing in the public domain is to encourage open engagement. In fact, I am disappointed that more people do not criticise what I put out. Readers should freely question my views and positions on any given subject. Their feedback may either broaden my perspectives or cause me to counter in a manner that both raises the quality of public debate and promotes wider understanding of the issues being discussed.

I believe that those who welcome praise must also accept criticism. Having claimed and exercised my freedom of expression, I am only all too aware of the right of others to exercise the same free speech on any matter, including when commenting on my public commentaries. Being human, it is natural that we will have varying lines of thought. I do believe, however, that it is only through many conversations that we can reconsider our positions, challenge our assumptions, question our convictions, and come to appreciate our own ignorance. Of course, the notion of content-based discussion seems like a tall order in today’s polarised Zambia, where any criticism of the government is deemed as support for the opposition, and vice-versa. We must get rid of this binary divide. It is unproductive, curtails meaningful interactions, and draws attention away from the real issues.

Now to the issues. I will ignore the ad hominem attacks in your response and focus on two subjects that I think deserve proper discussion. The first is your attempt to conflate Kaaba’s consent judgement with the one that I entered into with Emmanuel Mwamba in 2022. I find this comparison to be a crime against reason. I just do not see how any informed person can compare the two judgements because they are so demonstrably different: One involved admission of liability (mine) while the other (the one involving Kaaba against the government official he has branded corrupt) involved no such thing. Let me simplify this explanation for easy understanding by providing context to how mine came about.

In March 2021, I wrote an opinion piece that discussed the lack of freedoms in Zambia in the lead up to upcoming 2021 elections. The article was published initially in News Diggers in Zambia and subsequently in the Mail & Guardian newspaper in South Africa. Here is the article.

News Diggers version: https://diggers.news/guest-diggers/2021/03/19/this-is-why-zambia-may-burn-after-the-august-election/

Mail & Guardian version: https://mg.co.za/africa/2021-03-22-zambia-may-burn-after-the-august-elections-heres-how-to-prevent-this/

In response to the Mail and Guardian version of the article, Emmanuel Mwamba, at the time Zambia’s High Commissioner to Ethiopia and formerly Zambia’s High Commissioner to South Africa, alleged that my article was a “paid for opinion” and said “I can even guess who paid for that Op-Ed article in the Mail & Guardian”. He also accused me of being a hired gun, sponsored by then opposition leader Hakainde Hichilema and his opposition United Party for National Development. Here is a link to Mwamba’s article.

https://lusakatimes.com/2021/03/30/sishuwa-is-wrong-zambia-will-remain-peaceful-and-prosperous-beyond-august-2021/?fbclid=IwAR03qYdosSd6oupOMy8ikJpvxiiuMPsIQ9ygGpyai_pnPA4ooURBw6LZyf8

Because I have never ever sought nor claimed monetary benefits from anyone, dead or alive, for my public commentaries, I found Mwamba’s assertions injurious to my professional reputation. I also found malicious his insinuations that I supported Hichilema, even as this was and remains my democratic and constitutional right. As a result, I wrote to Mwamba, stating that neither the Mail & Guardian nor I had received any payment for publishing the article. I therefore requested him to retract his “defamatory and false” claims and apologise within 48 hours or face legal action. I have attached the letter of demand as evidence.

After Mwamba neglected to retract and apologise for what I felt were malicious assertions, I sued him in the Lusaka High Court, in April 2021, explaining why I felt defamed and attaching documentary evidence in support of my suit, including a letter from the Mail & Guardian newspaper which explained that I have never asked or received money from the publication for my activism.

Like other general cases, defamation suits in Zambia’s court system take long to be heard. By the end of 2021, four months after the ruling party to which Mwamba belonged lost power to Hichilema, the matter had not yet taken off. In January 2022, Mwamba, through his lawyers Makebi Zulu Advocates, wrote to my lawyers, Mwenye and Mwitwa Advocates, effectively admitting that he could not substantiate the assertions he had made against me and expressing his “willingness to sit on the negotiating table and settle this matter ex-curia.”

In response, and through my lawyers, I accepted the proposal for an out of court settlement on three conditions: that he apologises for making malicious claims against me, pays a nominal fee as admission of guilt, and settles the legal fees to my lawyers. See attached for evidence. It was on this basis that the consent judgement between Mwamba and I was entered into in June 2022, and he subsequently proceeded to implement the contents of the said judgement.

Given the abbreviated context that I have just outlined, I believe you will note significant differences between these two unrelated cases that you are trying to connect in an uninformed way that makes the cases appear harmonious. In my view, there are two critical differences in the two cases. The first difference is that in my case, the consent judgement arose from the recognition by the sued party that they could not substantiate the defamatory assertions they had made about me, and the realisation that they stood to lose the case in court and suffer high costs in both compensation and legal fees.

On this basis, and before the case had even commenced, the sued party reached out to my lawyers to seek out the person whose reputation they had injured and request for a settlement. This, in my view, was a rational and wise move. If you sue me because I have said something malicious against you and I discover that I was wrong, it is my responsibility to cut my costs and run. That is what Mwamba did. It was then entirely up to me, the injured party, to accept or not to accept the olive branch. I accepted the proposal for a settlement on the conditions that were clearly outlined, and which became the public contents of the consent judgement itself. I made it clear that if Mwamba was not amenable to all the conditions I set, then the matter should proceed to trial. He was amenable to all of them, and this is a matter of public record.

https://diggers.news/courts/2022/06/16/mwamba-to-pay-sishuwa-k30000-damages-for-defamation/

I should mention that for me, my interest in suing Mwamba was not money, but the need to (i) unearth the truth behind what was alleged and defend my professional integrity, (ii) promote content-based discussion, (iii) have civility and decency in our public exchanges, and (iv) raise both the level and quality of public debate. This explains why I instructed my lawyers to charge Mwamba the LOWEST amount possible under damages for civil defamation. Even after he paid the money, through my lawyers, I never touched it. Instead, I donated the whole amount to charity. For me, it was about principle. Again, this is a matter of public record.

https://x.com/ssishuwa/status/1550003221220958209

The second fundamental difference between the cases you are conflating is that in my case against Mwamba, the terms of settlement were transparently made clear and included in the consent judgement. The judgement had specific details of what needed to be done. The consent judgement between Kaaba and Marshal has neither content nor details of what motivated this settlement and the next steps. The fact that the case Marshal v Kaaba case was discontinued through a vague consent judgement rather than the plaintiff filing a notice of discontinuance raises many questions which, unfortunately, have implications on the reputations of both parties.

In my originating post, I asked why Kaaba consented to the withdrawal of the case when he told us he had evidence of Marshal’s corruption. If you know the answer, please share it I am sure there are many people who are as keen as I am to understand his reasons. If you do not know the answer, may you please ask Kaaba, since he is a board member of your civic outfit Alliance for Community Action, to publicly explain why he particularly consented to the withdrawal of the matter when he had evidence of Marshal’s corruption? We members of the public are interested in learning the reasons behind his strange decision to formally go to bed with the same person he had called corrupt.

This is an important point when one considers the fact that what is at stake is not a family dispute between Kaaba and Marshal – assuming they are related! It is high-level corruption, one that Kaaba openly told us that a public officer in the name of Marshal was perpetuating, an assertion that he was looking forward to proving in the courts of law. The public therefore is an interested party and has legitimate reason to seek explanations for what motivated this consent judgement that conceals its origins. If Kaaba has evidence of Marshal’s corruption, as he claimed only days ago, why did he sign a consent to discontinue the case? Please ask him for us since he is a board member of your NGO, which among other things, fights for the promotion of public accountability.

Why did Kaaba agree to the judgement without getting Marshal to formally acknowledge that he is indeed corrupt, as alleged by Kaaba, and, for this reason, was discontinuing the suit as an acknowledgement of guilt? Was it because any indication of guilt on Marshal’s part would have increased public pressure on Hichilema to dismiss him from his government position? Do you see the basis for the four implications that I outlined in my main post? If Kaaba, who had no need to consent to the judgement, realised that he cannot defend the claims he made against Marshal and risks losing the case if it went to trial, then this should have been part of the details of the consent so that we, members of the public, are in the know about what led to this consent judgement. This way, the public would know that Marshal is innocent, and that Kaaba was simply making malicious accusations against an innocent person or relative.

It is fair to say that many Zambians are not expecting much from Marshal in the way of showing respect for the office he occupies by way of stepping down on his own. We know that Marshal has said he won’t resign. We know that Hichilema won’t, for whatever reason, dismiss him. If Marshal refused to admit to Kaaba’s allegation that he is corrupt, why then didn’t Kaaba stand his ground and refuse to be part of the consent judgement so that Marshal could have discontinued the case on his own? Was Kaaba intimidated? And if he was, by who and why? And if he chickened out, then what does this say about Kaaba?

In my view, true, authentic leadership is not the illusions of political power or the positions that one holds in any formal structure; it is the courageous pursuit of the truth in the face of grave dangers posed to those who pursue such truth. True leaders are those individuals who hold steadfast to their principles in the face of all opposition and personal dangers, who hoist and proclaim virtue. These, in my view, are true leaders. History always vindicates them, just as it always undresses liars, cowards, and those, especially in civil society and academia, who collaborate with political leaders who nurture injustice, undermine democracy and human rights, and oppress, loot, divide, and impoverish the people.

Rather than picking up useless side quarrels with me, or attempting to deflect attention from the real issues at hand (in this case the grand corruption of the Hichilema administration, the president’s refusal to dismiss Marshal, and Kaaba’s unacceptable capitulation), any sane person must be concerned that Hichilema has sustained Marshal in his position despite confirmation from the Anti-Corruption Commission (ACC) that they have been investigating the Solicitor General for corruption over the last one year. By signing a consent deal with the man he has called corrupt, your board member, Kaaba, is taking the side of Marshal and Hichilema, not the side of public interest. WHY?

The Marshal case has clearly shown that Hichilema has no spine to deal with corruption if those accused of involvement in it are officials close to him. The real test about Hichilema’s commitment to fighting corruption was always never going to be the games he is playing against former officials but the attitude and decisive leadership that he demonstrates to the fight when members of his inner circle – such as one or two presidential aides at State House, three cabinet ministers, four permanent secretaries, or indeed the senior government officials named by Kaaba – are accused of involvement in corruption.

And as you yourself have stated publicly, Hichilema has lamentably failed the test on several occasions including when it comes to how he has dealt with the Marshal issue. Hichilema has not invited Marshal to resign the way he reportedly did with ACC Director General Thom Shamakamba. Hichilema has disbanded the entire board of the ACC. At the heart of these development is Kaaba, the person who told us that there is blatant corruption at the highest level of the state and that he has evidence to back these assertions. Yet the same Kaaba is now willing to strike a content-free deal with the official he branded corrupt and consequently helping him, as Hichilema has done, to remain in his post. I ask: WHY? Please ask him to explain.

The second issue that deserves brief discussion is your statement that I should not have referred to Kaaba’s ethnic identity, one that he shares with Marshal and Hichilema, as a possible explanation behind his strange decision to go to bed with the man he has branded corrupt. I have two points to make here. The first point is that I raised the issue of ethnic identity within the context of possibilities that may explain why Kaaba made that odd decision with Marshal. I cited the book written by Michela Wrong titled Our Turn to Eat, provided the context behind that specific possibility of ethnic considerations as a possible motivation, and expressed my view in a disjunctive rather than conjunctive sense.

If this particular possibility is wrong, it is for Kaaba – not you or any other third party to the consent judgement– to tell us by explaining which of the possibilities I stated, or any other beyond them, informed his decision making.  It is a fact that Kaaba and his newly consented partner, Marshal, are both ethnic Tongas, as is Hichilema who appears to be so protective of Marshal. If Kaaba did not enter into this strange consent judgement with the man he says is corrupt on the basis of ethnic considerations or because he was encouraged to strike the deal by Tonga elders, it is his responsibility, not yours, to make this clear and explain what motivated him to consent to the discontinuance of the case.

The second point is that we must get used to discussing uncomfortable subjects such as those bordering on ethnic identity. I have noted, with sympathy, the chorus of some in our country who insist that I should not have included the issue of tribe in what I said. I reject any prescriptions from anyone, human or divine, about what I should discuss in relation to issues of public concern. I am aware that there are many in our country, perhaps including you and Hichilema, who are very uncomfortable with any discussion that touches on ethnic considerations, but that is their problem, not mine. I refuse to be recruited into their brackets. We must discuss anything and anyone fearlessly, especially if the subject relates to public interest or concerns.

In my view, what the uncomfortables should deal with is the source of their discomfort, not my drawing attention to the need to discuss even uncomfortable truths or subjects. I have noted a growing attempt by some in our country to limit any discussion that touches on ethnic issues, and to condemn and discredit those drawing attention to the reality and dangers of ‘tribalism’ or regionalism, whatever the merit of their views, rather than those practising it.  Some elements of this orchestrated campaign of condemnation worry me very deeply.

It is suggested, for instance, that those who criticise Hichilema’s leadership actions do so because they either hate him as an individual, or hate his ethnic identity, or hate the province or region where he comes from. As a result, such critics should be rounded up and arrested for the expanded crime of ‘hate speech’! Some in our own country agitate for these extraordinary propositions with a degree of fanaticism that is truly frightening. It is most strange that you too seem ready to serve the cause of such fanatics by insinuating that we must freeze any discussion on ethnic issues.

Not long ago, before the 2021 election, both the leadership of the then ruling party and the supporters insisted that I should not discuss any issue bordering on ethnic matters whenever I criticised the marginalisation of other ethnic groups such as the Tongas in Edgar Lungu’s Zambia. See the links below for examples.

https://diggers.news/guest-diggers/2018/01/15/one-zambia-two-nations-the-disturbing-ill-treatment-of-tongas-in-lungus-zambia/

https://diggers.news/guest-diggers/2020/01/01/what-is-eating-me-up-and-giving-me-sleepless-nights-a-response-to-sunday-chanda/

I am now being asked to do precisely the same thing that the PF and its supporters did, which is to ask me to participate in censoring myself when it comes to any discussions bordering on ethnic issues. I reject this invitation with the contempt it deserves, as I did under the PF. I consider any issues affecting public interest as ripe for discussion. The only way I can be persuaded on any given subject is to demonstrate the weakness in my point of view on that subject, not to tell me that there exists a particular view on it that is supported by the majority, against which dissent is prohibited.

I know that I do say things that make some people feel uncomfortable. I insist that it is not my role to say things that make anyone comfortable. On matters of public concern, I will not be bullied into silence by anyone. I have the right to think and express my opinions.

Although it should ordinarily not matter, I would like to mention that while I have the academic tools, I do not speak out on issues of public interest because I am an academic. I speak out because it is my responsibility as a citizen – my primary identity – to hold public leaders and the government to account, and to promote the ideals and objectives of Zambia’s constitution. I insist that every citizen needs to take these duties seriously. To be silent in the face of abuse, injustice, inequality, corruption and attacks on democracy and human rights is to actively participate in sustaining the status quo.

Source: https://x.com/ssishuwa/status/1819068797577261565