Who Judges Journalists Who Judge Judges?

By Dr. Munyonzwe Hamalengwa
Senior Lecturer
School of Law
Zambian Open University
Lusaka
Zambia
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A Critical Review of; Life Sentence: Stories from Four Decades of Court Reporting –Or How I Fell Out of Love with the Canadian justice System (Especially Judges) by Christie Blatchford, (2016)
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Introduction

In the book entitled The Secret Mulroney Tapes: Unguarded Confessions of a Prime Minister, Peter C. Newman shows how obsessed Canadian Prime Minister Brian Mulroney (1984 to 1993) was with the media. He woke up every morning not searching for what the Supreme Court of Canada or any Canadian court may have ruled the previous day, but instead he was searching for what the media had written about him. When Richard Nixon temporarily left politics after losing to John Kennedy for the presidency of the United States, his relief was primarily that there would be no more Richard Nixon for the press to kick around. One Chief Justice of Canada, Antonio Lamer once stated that the media can influence a judicial decision. Indeed, when the Supreme Court of the United States (SCOTUS) ruled against the Jehovah’s Witnesses for refusing to salute the US flag, in the early party of the Second World War, it was the media outcry that led the SCOTUS to reverse itself in a similar case of the Jehovah’ s before the end of the Second World War.
Thus journalists and the media have profound impact on political and public policy decisions of political leaders and the judiciary. Politicians have gone out to cultivate close relations with famous journalists in order to gain positive media coverage. Journalists and the media can bring down governments. A number of journalists have reached such a rarefied status in the media world that their opinions are sought after or feared. Such journalists include George F. Will of the Washington Post, Linda Greenfield of the New York Times and a few others.
In Canada Peter C. Newman reached the top of such a pack. Christie Blatchford who has written for all major Toronto -based newspapers and the subject of this review has had a significant following and impact in the mainstream conservative establishment.

Like the judges, journalists are there to judge everything on a regular basis. But unlike judges whose decisions are subject to review by higher court judges and the media, journalists engage in free reign without accountability. Journalists like judges are backed by big and powerful machines behind them and they can flex their muscles and destroy people’s lives without consequences.

This review article of the book Life Sentence by Christie Blatchford in which she critiques the judges for being unaccountable, stuffy, self-entitled, self- regarding, uncontrollable, out of control, clubby, unregulated, overpaid, narcissistic, and more, is an attempt to judge this journalist who has decided to judge the judges only after 40 years of reporting from Canadian courtrooms.

Judging the Journalist judging the judges

Funny that the very judicial behaviour that Christie Blatchford now laments in this very important book, was partly sustained by her and Canadian journalists’ sycophantic behaviour towards the judiciary, prosecutors and police over the decades. Blatchford lamely explains in a CBC interview that the scales of sycophancy just fell off just this year and in the book she picks examples of little mole hills that suddenly became mountains that caused her to write this book. There is no explanation as to why it took an adult 40 years to come to a different conclusion while sitting in more criminal courtrooms than perhaps any other Canadian reporter in the last forty years. In any other field, Blatchford would have been arrested and charged for impersonating a court reporter for 40 years and covering up for judicial, prosecutorial and police perpetration of injustices. In fact this book is not about judicial injustices, prosecutorial and police misconduct, the scales relating to these have not yet fallen off of Blatchford’s eyes. What Blatchford laments is purely judicial unaccountability and related strictures. Judges behave like they were anointed by God rather than appointed, some corruptly and not because of their intelligence but connections. But all this has been known since the dawn of time.
Blatchford reminds me of a highly regarded American professor, Erwin Chemerinsky who was the founding Dean of the School of Law of the University of California at Irvine in the 1960s. Chemerinsky had written a lot of books on the Supreme Court of the United States and is regarded as the Dean of the Supreme Court Bar, a select group of go-to-lawyers on anything Supreme. He writes a weekly column of the American Bar Association Journal which I find in my inbox every Friday morning without fail for the last several years. All Chemerinsky does is comment on legal developments in the Supreme Court.
Then in 2014 all of a sudden, Chemerinsky writes a book entitled The Case Against the Supreme Court in which he relates his new discovery that it hadn’t dawned on him all these years that the trajectory of the Supreme Court from its inception has been to side with power, and against African Americans and the powerless. Whoa, what a discovery for somebody who went to law school in the 50s and has written a lot of books on the Supreme Court! How could a dean of the Supreme Court Bar, not have known all along about the conspiracy of arms between government and power with the US Supreme Court? How could Blatchford not have known all these 40 years, and how could Chemerinsky not have known for 50 years about judicial chicanery?
There is no answer in these books about this question. The answer lies elsewhere as we explore in this review.

Blatchford’s Background

Blatchford came into journalism in the 1970s when there were not many female reporters and criticizing a white male judicracy ( new word) had no blue-print. There was no precedent. The deans of journalism were outsized men like Alan Fotheringham, Peter C. Newman, George Jonas and a few others whose stature is no longer reproducible in Canadian journalism. Embedded in this maze were few brilliant female journalists like Barbara Amiel. Blatchford had to fight her way to fit in and be accepted in a man’s world. You had to join the club. You don’t rock the boat. No one was rocking the leaking boat of judicial supremacy and unaccountability. Careerism kept Blatchford’s scales fully obstructing her views and she never talks about this in the book.
There is another aspect to Blatchford’s careerism which has been consistent in her career and that is an anti- woman or anti- female stance. To join the club of men and be one of the boys, she wittingly or unwittingly became anti-woman or anti-female. To be accepted in police forces and prosecutorial and judicial fraternity she had to be anti- crime and anti-immigrant and anti- black. Professor Frances Henry has written extensively on Blatchford’s anti-black reporting.
In terms of careerism forcing a certain behaviour, Karl Marx wrote a long time ago that person’s material conditions, conditions their political consciousness. It could even be that their ideological consciousness results from their desired or projected acquisition of material wealth. It amounts to the same thing. Thus Richard Posner’s economic analysis of the law is pretty well not original to him. The market and economic forces dictate behaviour traits and modifications. Blatchford is no exception. Only that she does not delve into self-analysis. Who does?
However, it is not like there were no examples of crusading female journalists. There were including Isabel Bordelaise who crusaded against young Steve Truscott’s wrongful conviction. She wrote a book which temporarily reopened the case in the difficult 1960’s judicial supremacy era. The Quebec crisis of October 1970 and RCMP misconducts of the 1970s decade had exposed through public commissions of inquiry clearly provided raw materials for journalists like Blatchford to have her scales fall off right from the beginning that justice does not necessarily lie with the government and their supporting institutions like the judiciary. She chose to continue wearing the scales.
As for Chemerinsky, there is just no excuse for his scales not falling off sooner. So many books have been written over the years documenting the ideological bankruptcy of the judiciary, particularly the US Supreme Court. As early as one can remember, Bernard Schwartz wrote a book entitled, The Ten Worst Decisions of the US Supreme Court, topping that list was the 1857 case of Dredd Scott in which the US Chief Justice Roger Tunney wrote that African Americans were not citizens of the US and therefore had no rights recognized under the law. Among these worst decisions included the 1896 decision in Plessy versus Ferguson upholding the separate but equal false status of Blacks and Whites in provision of amenities. How can there be separate but equal facilities. Equality would mean not separate. The NAACP was formed to fight for equal rights. Chemerinsky was totally oblivious to all this and the resulting litigation that set out to prove that the US Supreme Court was a reactionary institution in the main. There is no court in this world that had been written so much about as the SCOTUS. Careerism informed Chemerinsky’s scholarship just as much as it informed Blatchford and both never disclose this. Eyes sometimes only see what they are searching for.
Blatchford started working for The Toronto Sun and as you can read from the only published history of that paper in the book entitled The Little Paper That Grew, the paper wanted a piece of the action from the big boys, The Globe and Mail and the Toronto Star, and to get this piece of action this new little paper had to veer towards the extreme right. Blatchford was launched along with it towards the extreme right. The same thing happened when Conrad Black founded the National Post in the late 1990s, it was the paper of the extreme extreme right wing. Black gathered most of the right wing journalists of the era including Blatchford. Right wing ideology does not discuss judicial unaccountability except when it is convenient. Right wingers don’t recognize the existence of prosecutorial, police and judicial foibles and misconducts. Blatchford doesn’t even talk about what ideology animated her reporting of 40 years. Ideology in reporting kept Blatchford’s scales fully planted onto her eyes. Careerism and ideology sealed the deal for Blatchford.

Blatchford’s Book through Psychological and Psycho-analytical lenses.

Blatchford’s behaviour can fit neatly into psychological and psychoanalytical lenses deployed by H. N. Hirsch in his biography of Felix Frankfurter, a US Supreme Court judge in his book, The Enigma of Felix Frankfurter. Like Frankfurter, Blatchford came to journalism as a most brilliant prospect but an outsider nevertheless. Like Frankfurter, Blatchford constantly brings her autobiography into her writings as experiential justifications or entry points to a story. It is like she is saying, who dare you challenge me, I know from experience what I am talking about!
In his review of the Hirsh book, Alan Dershowitz in his book, Shouting Fire: Civil Liberties in a Turbulent Age, lays bare what is at stake in people with Frankfurterian complex, like Blatchford. These people have certain self-images, and we know this because we have been with Christie Blatchford for 40 years and I have been reading her columns for that long and we have encountered each other in court in some of the murder cases that I have done and she has commented on those murder cases. So Blatchford is a person I know very well to the point that I had actually sued her at the Human Rights Tribunal of Ontario for her racist reporting and she has criticized me and other lawyers in murder cases without interviewing me or those other lawyers.
I digress a little to place into proper context how much I know and have dealt with Blatchford at close range over the years. This is to show that my review of her book is not based on long range and detached or abstract academic analysis. It is the subject of very close and personal encounters with this journalist and I have researched and discussed her with many defence and prosecution counsel. She is person-non-grata in the Canadian defence bar though lately she has become chummy with the female defence bar because of the commonality of race and gender. And perhaps ideology. Blatchford is held with pitiful distance in the African-Canadian community because of her documented racist rantings through her newspaper columns as analyzed by Professor Frances Henry.
I first met Blatchford when I did my first murder trial defence of Kuldip Singh Samra in August 1993 to January 1994. During that five-month period, Blatchford was reporting on that double homicide case and never once interviewed me but there she was daily sucking up to Judge Edward Then and prosecutors Uriel Priwes and Warren Thompson. She was quoting the prosecutors daily and she was in fact reporting almost as part of the prosecuting team. She was always strengthening the prosecutors strategy. She has continued up to 2016, right up to the publication of the book under review.
I have followed Blatchford’s brilliant coverage of all major cases including murder cases. She is an excellent free-flowing writer, clearly pro-judges, Pro-prosecutors and pro-police.
One thing became apparent as I read Blatchford’s columns. She is afraid of power, no natter where it comes from. She is respectful of prominent mainstream defence counsel like Eddie Greenspan, Clayton Ruby, Alan Gold, John Rosen and so on. Blatchford becomes objective when she reports cases defended by these mainstream lawyers because she knows they would take her and her newspaper to the cleaners. But to the non-mainstream defence counsel like this author and their clients, Blatchford has historically been vicious without restraint.
I next encountered Blatchford at a tail end of a murder case I did in 2005 to 2007 involving a police officer who had killed his mistress. Sure enough I found Blatchford sitting comfortably with prosecutors Howard Dale and Jeff Pearson, sucking up. After l left that case, a very controversial case, Blatchford interviewed me by email but she never ever used that interview because it did not contain the sensational material she preferred to nail defence counsel. Later on when she wrote on that case, she never reinterviewed me but was vicious in her judgment against me in tandem with professional prosecutorial and police agencies.
In 2008 to 2010 when I did another major murder case involving double homicide for HIV-transmission, Blatchford never deviated from her sucking up to prosecutor Karen Shea and John Pearson. She never interviewed me but attacked me ferociously in the Globe and Mail as “bellowing at a witness” when the witness cried in cross-examination. She continued to attack me and my co-counsel Davies Bagambiire and she had a particular neurotic hatred of our client.
But sucking up to the presiding judge Lofchik, she as always, was perfect.
Thus to read that after 40 years of reporting she has fallen out of love with the Canadian justice system, especially the judges, was too much to take. Thus this longer review of her book and my personal encounter with Blatchford interwoven in this review. A lot of lawyers can perhaps report same encounters and experiences.

I know Christie has a negative self-image of herself just like Frankfurter had.
According to Dershowitz commenting on the Hirsch book, “when a self-image is created and employed for ‘purposes of compensation’, the individual will feel a constant need to prove himself, to overreact to criticism, to direct self-hatred outward and to conceal self-doubts”. Blatchford in addition to her other self doubts which are so obvious and have been commented on by many others including herself, have had doubts whether she would cut it in a then man’s world of journalism.
“Self conscious about his short stature and immigrant background, Frankfurter decided to parlay his intellectual brilliance into , ‘a certain degree of social acceptance from Brahmin, Yankee culture’ “Dershowitz quotes Hirsch. We all know what ails Blatchford. This can according to Hirsch lead to the development of neuroses and private insecurities that now could be projected writ-large onto judicial or journalistic behaviour.
Frankfurter according to Hirsch as quoted by Dershowitz “can best be understood, ‘psychologically as representing a textbook case of a neurotic personality'”. Blatchford fits into this mold. As do Henry Kissinger and SCOTUS Justice Clarence Thomas. Such people afflicted by neuroses and private insecurities lead them “to harden their stands, to behave in a certain way towards their colleagues, to emphasize certain strands in their philosophy and to exclude others when they were adopted by their enemies, to ignore and rationalize certain contradictions in their theory”.
When you examine Frankfurter, it is like you are examining Christie Blatchford. Frankfurter once unleashed on the scene became, like Blatchford, “a hopeless sycophant, constantly fawning on and flattering those in power (or positions of influence), even when privately critical of their actions”, reviews Dershowitz.
Thus in 40 years Blatchford from the record, never met a judge, prosecutor or police that she did not like and suck up to. I have observed this with my own eyes. The scales have fallen with respect to judges, grudgingly. Maybe Blatchford is on another mission and platform to conquer. She no longer has use for the judiciary. She had climbed. She is now too big to fail or fall. Will the scales ever fall with respect to prosecutors and police who perpetrate wrongful convictions or racial profiling?
Blatchford long reached her exalted status and maybe this important book on the Judges is a signal that she no longer has to keep proving herself while concealing her self-doubts, paraphrasing Dershowitz review of the Hirsch book concerning Frankfurter.
I recommend Life Sentence unreservedly, it is the only one of its Kind in Canada and it has come 40 years too late but it is a wake-up call to the Canadian judicial establishment from within their club, so therefore it is likely to get attention while our snippings from the fringe on the same subject of judicial obduracy has been ignored for 40 years.
However, the Life Sentence of 40 years is self-inflicted and no sympathy can be exacted from the readers. And this sentence will continue until Blatchford removes her blinkers about prosecutorial and police misconduct that are the causes of untold injustices in the criminal and other justice systems. In my book, The Politics of Judicial Diversity and Transformstion(2012), I provide the tools by which Blatchford may be liberated. Unlike Kirk Makin formerly of the Globe and Mail whom I first gave the book to, to review shortly after it was published but who cleverly and in an unconscionable sophisticated way according to the Dean of a Canadian law school, stole my intellectual property from the book and ran with it without attribution of the sources of his new twist of ideas, garnering much accolades on judicial diversity throughout 2012 in Canada, Blatchford will be doing it with my permission.
This review is to also show that there is much written in Canada on Blatchford’s subject matter which needn’t have taken her 40 years to discover.

Munyonzwe Hamalengwa is a Senior Lecturer in the School of Law at Zambian Open University in Lusaka, Zambia. He had practised law in Toronto, Canada for 25 years in which he did major first degree murder cases and engaged in high profile class action law suits against racial discrimination and racial profiling. His forthcoming book is entitled, The Book on Judges.

Dr. Munyonzwe Hamalengwa Invites you to Prof. Kenneth Mwenda’s Book Launch

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2016 is the beginning of marketing. Books must get into people’s hands and bookshelves and the author must get compensated for the hard labour and knowledge that they impart. The founders of Microsoft, Facebook etc are highly compensated for their intellectual property, so should authors. It is amazing to me how lowly authors are paid for their intellectual property, especially those writing academic books. One reason is that authors and their collaborators never took the bull by the horn.

There was one time when athletes were not compensated properly despite the massive entertainment they provided to people, until recently when athletes took charge. Authors of intellectual books must do the same.

That is why I am promoting Prof. Mwenda’s book because I know it’s value.

Dr. Munyonzwe Hamalengwa
August 10, 2016, Lusaka.

The Constitutional Court Speaketh

Dr. Munyonzwe Hamalengwa

Though the  issue that  the Constitutional Court was grappling with regarding whether Ministers and Deputies’ continued serving as Ministers after the dissolution of parliament was constitutional, and quite simple as a matter of constitutional law, the decision is worth celebrating. It is one of the most important decisions in Zambia’s constitutional history. The decision given the usual judicial deference to the executive and parliament could have gone the other way. The judiciary in Africa is usually reticent in ruling against the executive. They could have deliberately mangled the decision or found a way to say the same thing but in a very lame way so that the President, who had stated that he believed that he was right that the ministers and deputies could continue, would not be embarrassed.

Take the decision of the Supreme Court of Zambia in the Chikopa Tribunal case. The Court stated that the President, namely Sata at the time was within his jurisdiction to constitute the Tribunal but then the Court inserted the last sentence which stated that the Court hoped that the President would not go through with it, meaning the Tribunal. The Court was very uncomfortable with the decision. If the President was right, why should he not go through with his decision? Some scholars believed that the decision was outright wrong and the Court was trying to send signals of its troubled nature and appease those in the know. Some of these issues sometimes only become fully exposed in autobiographies or biographies if at all. Only problem is that African Judges do not write autobiographies, something very common in the USA, Britain, Australia and Canada.

Take also the decision of the US Supreme Court in the case of Gore versus Bush. The majority conservative judges sided with Bush and their decision made him President. However, that same conservative majority inserted something that is never seen in constitutional jurisprudence. It stated that it’s own majority decision must never be used as a precedent, because it was so unique on its facts and circumstances. Alan Dershowitz of Harvard Law School, in his book, Supreme Injustice, based on that case stated that the case was clearly wrong, politically motivated and the conservative judges didn’t want this wrong decision to ever be used in future to advantage the opposite side of their ideological spectrum.

The point here is that Court decisions must never be taken for granted, especially cases that are politically laden. When you get a decision like the one on the Ministers and Deputies Ministers’s continued stay in office, you must celebrate them. Judges don’t normally like to bite the hand that feeds them, despite their security of tenure, supposed judicial independence and all the power  trappings. They still have to meet the leaders at state functions and our leaders usually have thin skins, the egos are easily bruised. Some politicians throw temper tantrums at the judges. The judges still have to consider the political repercussions of the moment and those in lower courts still pine for promotions and higher status and those not already Chief Justices still dream of promotions to the Chief Justice’ chair.  Judges are still subject to the whims of the market place like the rest of us. See Richard Posner, et al, The Behaviour of Federal Judges and also Richard Posner, How Judges Think, and Munyonzwe Hamalengwa, The Politics of Judicial Diversity and Transformation (found at Planet Books at Arcades).

The Zambian papers report that the President and the PF have said that they will respect the decision, as if they had a choice. This is not a Tribunal like the Tax Appeals Tribunal that the government can easily ignore. There are legal and political repercussions in disobeying a Constitutional Court or a Supreme Court order or any Court order. There should also be consequences for disobeying a Tribunal order. Stating that they respect and will abide by the decision indicates that they believe they have an alternative. There is no appeal of this decision. Not respecting the rule of law would have legal and political consequences in an election year. Or any year for that matter.

2016 is truly a year of new beginnings. There is the amended new constitution. There is the new Court of Appeal. There is a new Constitutional Court. There is a new revolutionary decision by our new Constitutional Court. There will be a new constellation of government whoever wins the election of August 11, 2016.

There is new hope in this new Constitutional Court. Without an impartial, autonomous, strong minded and independent judiciary, there can be no true democracy,  especially in the absence of a free press but in the presence of a conscripted press. Having started on a dynamic footing, this Constitutional Court should emulate continuously the Constitutional Court of South Africa in which so many people have hope given the continuous tenuous political landscape there and in Zambia.

Dr. Munyonzwe Hamalengwa teaches law at the School of Law, Zambian Open University and is the author of The Politics of Judicial Diversity and Transformation.

The Predictive Failures of Conrad Black

I need not belabour the well known fact that Conrad Black is a very brilliant person and historian. I have followed him for a very long time despite the fact that we are political opposites. When he was supporting Gatsha Buthelezi and implicitly Apartheid South Africa and calling the African National Congress a terrorist organization, I was supporting Nelson Mandela and the ANC and opposing Apartheid. I have all of Blacks books, all of which are very well researched and written.

The evidence is that Black has a tendency to like and support despicable, racist and right-wing historic figures which really are more or less birds of the same feathers, except perhaps Franklin Delano Roosevelt. His support for Donald Trump, the most racist and clueless politician of the modern era clearly points to Black’s other-worldliness.

What  is intriguing is that nobody has ever told Conrad Black to confine his opinions despite his constitutional right to freedom of expression and speech to historical musings rather than to futuristic forecasts. When it comes to reading future political or legal trends, Black is an utter failure. Examples are legion. He had predicted that he would beat his criminal charges hands down. He was convicted. He predicted that Barack Obama would implode and Hillary would win, that didn’t happen. He predicted that John McCain  would slaughter Obama. That didn’t happen. He believed that Mitt Romney would be a walk-over Obama. The world knows the result. But Black continues to misfire regardless.

Now Black has been touting Trump. On the basis of Black’s predictive record as itemized above, this too will be a disaster. If Trump wins the election against Hillary, I will walk from Cape town to Cairo and if Clinton wins, Black will walk from Halifax to Vancouver. All protocols observed.

Dr. Munyonzwe Hamalengwa

School of Law
Zambian Open University
Lusaka
Zambia
+260963007267

Can a Zambian Judge Be Forced to Convict and Sentence a Political Opponent?

By Dr. Munyonzwe Hamalengwa
August 1, 2016

Can a Zambian judge be forced by the governing authorities to convict and sentence a political opponent? The newspapers have reported that a judge in DRC has revealed that she was forced by the Congolese government to convict and sentence exiled opposition leader Moise Katumbi  to three years. You will recall that Katumbi was giving the Kabila government a run for their money and was poised reportedly to be on target to win the next election scheduled for December 2016. He was the only opposition leader who was credible to win the election. Kabila is prohibited by the constitution from running again but has done everything in his powers like all tin-pot dictators do to cling on to power despite what the constitution stipulates. The US Secretary of State has made trips there to dissuade the dictator from progressing with that destructive course. To no avail.
Katumbi was standing in the way of Kabila’s illegal and pre-planned constitutional violation. He had to be dealt with like all dictators do, his house was invaded without a warrant, false charges were laid and was forced to flee into exile. He was tried, convicted and sentenced in absentia. Now the judge has revealed that she was forced to do that by the government.
Could the Zambian government force a judge to convict and sentence a political opponent, not on the basis of utilizing the tools of impartiality and independence? By stating that she was forced to do what she did, the Judge is revealing that she would have behaved otherwise but for the force that was applied on her.
Now the importance of this subject is that rarely do judges openly reveal that they were forced to do this, to perpetrate an injustice. So this rare admission must be celebrated as a measure of judicial courage and we now know that judges can indeed be forced to come to a decision that they would otherwise not have made if they applied their own constitutionally provided lenses of judicial impartiality and independence.
No government has ever admitted forcing a judge to rule one way or another. But we can only infer from circumstantial evidence that a government has participated in warping justice partially. We know that where the government has eviscerated the rule of law like under apartheid in South Africa and elsewhere, the conditions are circumstantial evidence that some judges’ decisions in relation to political opponents of the regime like apartheid and elsewhere would not be independent or impartial. They would be circumstantially forced to do what the Congolese judge did. The question is, can this happen in Zambia? Is there evidence that such can happen in Zambia? This is a good research question.

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University School of Law and is the author of The Politics of Judicial Diversity and Transformation available at Planet Bookstore at Arcades.

Because of Lungu’s Behaviour, GBM Would Be Entitled To a Mistrial

By Dr. Munyonzwe Hamalengwa
July 24, 2016

The police recently raided  without a warrant GBM’s house and for good measure according to the reports,  planted weapons, stole a lot of cash and maybe other things, tear-gassed his family and committed other atrocities. If you have never had your house illegally invaded, you are not in a position to know the ultimate violation of privacy that this entails. From centuries ago, the English courts which Zambia follows, proclaimed that ” a man’s house is his castle” and his privacy shall not be unduly violated in it.

It was also reported that after this violation of the rule of law, the police summonsed GBM to the police station. As of Sunday, July 24, 2016, I have not read any reports as to what has happened to GBM since he had been summonsed. Is he going to be detained or charged?

On Saturday July 23, 2016, the Zambia Daily Mail on its front page with a picture of President Lungu addressing hundreds of people at Mumbachala reported that Lungu told the crowd the following, “the recovery of offence weapons by police at the house of UPND vice-president for administration Geoffrey Mwamba in Kasama demonstrates the reason leaders of the opposition party refused to sign the peace pact”.

Firstly Lungu is lying. The UPND explained the basis of their refusal, so a President is lying through his teeth to hundreds of people for political gain.

However, the lie is not the most serious since the PF has been lying from the election campaign of 2011: remember more money in your pockets, the Constitution in 90 days, the resolution of the Barotseland case in 90 days, the creation of thousands of jobs, the opening of the Mulungushi textile (which never opened and again to win an election is slated to be opened 10 days before elections- the vote buying spree is in full swing, too little too late  I reckon. In the same front page issue VP Wina is promising 5,000 squatters to get free land for settlement- why now?) and so on.

The most serious thing about Lungu’s pronouncement on the GBM issue is that a lawyer-president makes a judgment on an issue that may end up in court should GBM be charged with the very offence that Lungu now categorically judges that GBM is guilty of. There may be triable issues here. Court cases are rarely that straight forward. That is why the concept of fair trial before an impartial tribunal was created.

How can GBM and the UPND members already arrested, receive a fair trial when the president has already found them guilty. What if there is evidence through fingerprints and eyewitnesses that will state that the alleged weapons were planted? Which magistrate or judge would believe that defence when the almighty President has already pronounced the verdict? Which magistrate would give GBM or the arrested UPND members, bail since the president has already convicted them?

What if there is a defence that any alleged weapons were for self defense because the PF is a violent party and the UPND had prior knowledge of the impending PF attack, and the weapons were never going to be used if the PF never attacked? What happens to that defence since the president has already found them guilty? Self defence or preparing for self defence for credibly apprehended danger is a legal defence accepted throughout the common law world.

It is immaterial that GBM and the UPND members may not be charged. The president is enjoined from commenting on any potential legal issue because of the prejudice that it may create. It would be okay from people like “Dr.” Kambwili to speculate, but not from a lawyer-president even in the heat of an election campaign.

If GBM is charged with any offence arising from the illegal raid of his home and if any UPND members are also charged, there must be an immediate declaration of a mistrial, or nolle proseque  by reason of presidential interference in the administration of justice. The prosecutors and judges owe it to the oaths they swore to uphold the rule of law and to punish the transgressors and not to punish the victims of the miscarriage of justice in which GBM and the UPND members may find themselves. The Nuremberg cases and the South African Truth and Reconciliation Commission have now set precedents that judges are also accountable in post-conflict Justice. In both precedents, judges were dragged to the hearings to explain when they sided with injustices during the reigns of the prior regimes. Justice never sleeps.

Dr. Munyonzwe Hamalengwa practiced law in Canada for 25 years and is the Compiler of the book, The Case Against Tribalism in Zambia available at Bookworld.

 

Why the Constitutional Court Could Set Aside Any PF Presidential Victory.

By Dr. Munyonzwe Hamalengwa
July 21, 2016

The PF has committed so many corruptive, fraudulent, bribery, violent and rigging practices during this election cycle that any independent and law-fearing and abiding Constitutional Court would set aside any PF Presidential election victory. Much as I have no confidence in any constitutional court overturning a presidential election victory, even with rigging, fraud, bribery and violence etc having been established, the suits of petitioning the election results are still mounted all over the world. There are just no precedents for overturning these results mostly because the judiciaries are compromised or not independent enough. We still have some very strong and independent courts in South Africa where the judiciary can actually vote against a sitting president. So hope still reigns supreme. No hope, no life, no future. So we can never lose hope.

There is massive evidence upon which the Constitutional Court of Zambia could overturn the election result if the PF won this election, assuming the prerequisites of independence, non-compromise and the strength of the court are met. The following is a partial listing of the rigging,fraud, bribery, violence and other underhandedness the PF has committed, all these amounting or capable of amounting to this election not having being free and fair. The reader can add more as this list is not exhaustive:

  1. The alleged statement by President Lungu that Luapula will not be developed if they don’t vote for PF thus implying retaliatory or reprisal action against the voters in Luapula and anywhere in Zambia who don’t toe the line. This is one of the worst forms of intimidation, bribery, fraud and day-time vote buying you can ever come across. A province of Zambia has to be punished if it’s voters exercise freedom of choice! And this threat and intimidation coming from a sitting president, a president who controls every expenditure of the Kwacha in this nation! There can be no greater electoral malpractice than this.
  2. The VP Inonge Wina is alleged to have told voters in Masaiti that the area is not developed because it voted for the opposition or something to that effect. This is reprisal and retaliatory action against the people of Zambia. No leader should punish any constituency, district, province and people of Zambia for exercising their freedom of choice. It is unconstitutional. This is an economic crime. This is bribery, it is fraudulent, it is discrimination of the worst kind. Some MPs in the last election after 2011 lost their seats for conduct less than what Lungu and Wina have committed this time around.
  3. Mumbi Phiri is alleged to have advised the people of Malawi to come and vote in Zambia, knowing this is treason as inviting foreigners to subvert the constitutional order of another country is properly regarded. This is akin to inviting mercenaries to invade your own country so that you can claim the spoils at the sufferance of your country. If Mumbi Phiri stated what is alleged in the press, this is a serious contravention of the Elections Act. This is rigging. The result of a rigged election merits setting aside. This has to be seriously investigated despite Phiri’s reported denials because it comports with the reports that Malawians have indeed registered to vote in Zambian elections.
  4. There is alleged registration of foreign voters finding their way to subvert our democracy. The ECZ is not investigating this serious allegation. Foreigners are used to rig this election. The result if it favours the ruling party, the only party that controls voter registration, could be set aside as having been rigged by the ruling party.
  5. There are allegations that the Minister of Local a Government and his Permanent Secretary have conspired to rig the election using local councils. If the tape recording of that conspiracy is truthful, then these elections are being prepared for rigging and the result cannot pass constitutional muster.
  6. The President is literally attempting to buy this election, something not seen in contemporary Africa. He is promising to build this and that. Why now? He has named a non-existing stadium in a certain province after a named former president, after not having done so in five years of his party’s rulership. He has bought the Chiefs. He has bought the farmers. Zambians have lost millions of kwacha and employment through loadshedding, here comes Lungu with decreased loadshedding at the last minute and wants to be thanked for it. Bribery, fraud and corruption are openly committed to win an election.
  7. Violence against the opposition, particularly police killings of opposition members are being committed on a large scale. Opposition members’ offices and houses are being raided and evidence planted. This cannot be a free and fair election. The result could be set aside.
  8. The ZAF is being bribed and corrupted in aid of the PF by closing airspace to the opposition and chasing away opposition leaders from provinces in order to advantage the PF. This has never been done anywhere in contemporary Africa. This is unconstitutional. This is violence. No free and fair elections can take place under these circumstances.
  9. The tax-payer funded public media has been compromised, bribed, intimidated etc to spout mainly PF propaganda. This media by name includes, ZNBC, Daily Mail, Times of Zambia. Imagine if this publicly funded media was free and accorded the opposition free and equal reign, how fair this election would be! Look at the headlines in the Daily Mail and Times of Zambia or should be called Times of Lungu! All biased in a massive way towards the ruling party. Other nations like Canada, South Africa, and Britain have public broadcasters that are not biased. So it can be done.
  10. The reader can itemize his or her own list of rigging, fraud, corruption and bribery concerns and there should be plenty there.
  11. Lastly but not the least, “Dr.” Chishimba Kambwili and “Colonel” Panji  Kaunda are alleged to have played the unconstitutional and criminally- prohibited and discredited tribal card in the Copperbelt and Eastern Province respectively to advantage the PF. Playing the tribal card in order to divide Zambians for the purposes of winning an election is some sort of rigging, corruption, fraud and bribery. It fosters hatred amongst Zambians unnecessarily in order to benefit a few individuals while the majority suffer. This is not the Zambia we want.

The question is, with this evidence, and more, is our Constitutional Court independent, fair and impartial in order to do justice? This  is what it boils down to because the evidence of rigging, fraud, bribery, violence, etc is there. Zambia Shall Be Free, as President Kaunda once wrote.

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University School of Law and is the author of Thoughts Are Free, Prison Experience and Reflections on Law and Politics in General, a book found at Planet Books at Arcades in Lusaka. He practised law in Canada for 25 years.

A letter to all Zambians to stop President Lungu from eviscerating democracy in Zambia

Dr. Munyonzwe Hamalengwa
July 18, 2016

To Fellow Zambians,

I read with great sadness the news of July 18, 2016 where it was reported that President Lungu through his military and airforce henchmen and women have chased GBM and his entourage out of Luapula because Lungu himself was going to be there and no other party should be campaigning in the same province. I have heard this nonsense before when Airforce Commander Chimense had decreed that when the President is using the airspace anywhere in Zambia, the opposition must be on the ground or nowhere near. This is political insanity.

I have lived in many democracies( including the USA, Canada, Tanzania and travelled to a great more countries during their elections)  for forty years and I have never heard of this insane evisceration of democracy. This period is the ultimate time to express the ultimate in what democracy is all about, to campaign everywhere and anyhow without limitation as long as it is done  without violence, fraud, bribery, corruption, rigging, and all types of underhandedness. If you have the means to fly or drive anywhere in the country, you must be able to do so without any limitation. Who the hell do Lungu and Chimense think they are sending a message that they own this country! Yes they are President and Airforce General respectively at the present time, but they don’t own this country. They can’t impose something that is not in the constitution. This is illegal and lawless. If they can do this during a supposed democratic election, imagine what they are capable of doing after elections if they win and rule for the next five years. They are violating the law now, when they should be supplicants, imagine after!

Check the constitution. Lungu and Chimense are on a major campaign power grab using illegal and lawless means. It is not in the constitution that only Lungu should be allowed to campaign alone  in any part of Zambia. Why did he go to Luapula when he knew GBM was already there? It is not anywhere in the constitution that when the President is in the air, democracy for others must cease and defer to Lungu’s under the sufferance that your flying licence will be suspended or revoked. Where did this idiocy come from? From Museveni, Mugabe or Kagame or Kabila? Presidents Kaunda, Chiluba, Mwanawasa and Banda never tried to grab the airspace like Lungu has arrogated for himself. This is an accidental President and he is developing into a tin-pot dictator. Zambians, don’t let your hard fought and maintained democracy be demobilized by an accidental President surrounded by a few power hungry bandits.

This is a killer regime. It kills peaceful demonstrating opposition members, it’s brutal police force illegally cancels campaign rallies of the opposition claiming that it does not have the manpower yet sends in reinforcements whenever the opposition is holding a rally. This is the police force that is totally taken over by PF cadres. It is a cadre police force. The Army, Airforce and ZRA are also instruments of the state.

This government has not translated the referendum question and the Bill of Rights into local languages so that the people can have an understanding of what they will be casting their vote on. This is a surreptitious method of winning an election. Personally the Bill of Rights is a progressive document but the method of bringing it about must be done properly and not the way it is being  done now. There is a hidden agenda. If Lungu is violating the constitution that is already existing, what will stop him from violating the Bill of Rights when at that time, he will have nothing to lose. There is no deterrence against Lungu at all.

Lungu is a danger to democracy. Chimense is a danger to democracy. The bandits surrounding them are a danger to democracy. Zambians should forcefully assert their democratic and constitutional rights.

GBM should not have left Luapula. He should have continued to fly regardless because what Lungu and Chimense are doing  is illegal and unconstitutional. Any Constitutional Court or Supreme Court judge who is not compromised and is worthy his or her salt would not fail to find that Lungu and Chimense  are lawless in their power grab of Zambian airspace. And power on the ground.

Henry Thoreau, a Philosopher, devised the concept of civil disobedience to resist illegal violations of people’s constitutional rights by aspiring lawless dictators. This device has been used all over the world to fight slavery, colonialism and apartheid. Gandhi, Mandela, Kaunda, Martin Luther King Jr. all used this powerful device. It is time to use this device in Zambia in the remaining days of this eviscerated democracy or it will be too late. The device is legally defensible. Lungu and Chimense’s constitutional violations are indefensible. Democracy must be defended by any means necessary. Zambia Shall Be Free. And Thoughts Are Free.

Dr. Munyonzwe Hamalengwa teaches law at the Zambian Open University School of Law, and is the author of the book, Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General. This book is found at the Planet Books at Arcades in Lusaka.

Nelson Mandela Would be very Proud of the Law Association of Zambia

By Dr. Munyonzwe Hamalengwa
July 18, 2016

This July 18, 2016 would have been Nelson Mandela’s 98th birthday. This day is commemorated the world over and the UN has declared it the Nelson Mandela Day. Below is a link of an article I wrote some time back remembering how Mandela continues to inspire me. Today I shift to write about how Mandela would be proud of The Law Association of Zambia in their struggle for justice and the rule of law.

There was a time in South Africa just after Apartheid when they decided to have a new constitution as well as a new Constitutional Court, just like the stage Zambia has now negotiated where there is a new Constitutional Court and a new constitution-in-the making. At the inauguration of the new constitutional court in 1995, Mandela may well have been speaking to President Edgar Lungu and the new Constitutional Court Judges, when he said: “people come and go, customs, fashions, and preferences change, yet the web of fundamental rights and justice which a nation proclaims, must not be broken. It is the task of this Court to ensure that the values of freedom and equality which underlie our interim constitution and which will surely be embodied in our final constitution are nurtured and protected so that they may endure”. Time will tell whether our new Constitutional Court judges will imbibe Mandela’s wisdom. Is Lungu living up to the vision of the Legend?

To highlight the importance of the new Constitutional Court, which the new Zambian judges should pay attention to,  Mandela hacked back to give a personal example of his situation dating back three decades: “the last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused but, on behalf of the people of South Africa to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy”.

Mandela has spoken about the role of lawyers in society. His message is very pertinent to the role the Law Association of Zambia is playing right now in Zambia, the struggle for justice and to maintain the rule of law. Mandela may very well have been speaking directly to the Law Association of Zambia and to unleash it to go forth to continue doing what they were legislated into being to do. He harangued, “I regard it as a duty which I owed, not just to my people, but also to my profession, to the practice of law, and to the justice to all mankind, to cry out against this (violation of the rule of law) which is essentially unjust and opposed to the whole basis of the attitude towards justice which is part of the tradition of legal training in this country. I believe that in taking up the stand against this injustice I was upholding the dignity of what should be an honourable profession”. Those who vilify LAZ should heed that LAZ is fighting for something bigger than itself. That justice is on its side.

There is so much violence and repression in Zambia currently and LAZ is walking in the footsteps of great justice activists like Martin Luther King Jr and Mumia Abu-Jamal. King reasoned, “Injustice anywhere is a threat to justice everywhere”. We have seen all types of injustices in Zambia. If it perpetrated against one entity, it naturally follows that the same injustice and violence would be perpetrated against several other entities and eventually towards the whole society.

> Mumia Abu-Jamal exhorted thus which LAZ has paid attention to when he said, “when a cause comes along and you know in your bones that it is just, yet refuse to defend it- at that moment you begin to die. And I have never seen so many corpses walking around talking about justice”. Some even fit Martin Luther King Jr.’s admonition, “those who fail to cry out against evil, may as well be conniving with it”. LAZ does not fall in this category.

To LAZ:  Nelson Mandela, Martin Luther King Jr.  and Mumia Abu-Jamal would be very proud of the role you are playing  in the vindication of justice and the rule of law in Zambia. Zambians are especially gratified that you exist and speak up.

To you Madiba, eternal rest on this your birthday.

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University school of Law.

http://sharenews.com/nelson-mandela-and-the-canadian-legal-and-judicial-profession/

 

 

 

Chiluba: hero or villain, a contribution, Part 1

By Dr. Munyonzwe Hamalengwa
June 19, 2016

June 18th, 2016 was the 5th Anniversary of the death if Zambia’s second president, President Frederick Jacob Titus Chiluba.

The question asked by Mr. George Chomba on the 5th anniversary of the death of President Chiluba is whether Chiluba was a hero or villain, reflecting post-death. The article seems to conclude that Chiluba has been consigned to the category of villain. Chomba writes, “Dr. Chiluba remains the only former heard of state not to have been honoured by successive governments despite being the pioneer of democracy and free market economy…he left an indelible mark on the conscience of the nation and transformation of the economy. Yet Dr. Chiluba is hardly recognized as a significant political player and a trendsetter”. Chomba itemizes all the honours bestowed on other leaders and the institutions named after them, but no institution has been named after Chiluba despite his acknowledged and stated contribution to Zambia.

Unfortunately Chomba does not try to give reasons as to why Chiluba has been neglected or who specifically neglected him. Is it because of the massive taint of corruption that was smeared on him? Perhaps. Did those charges stick? Who was responsible for not resuscitating his image?

We all learnt as children that when you point your fingers at the alleged perpetrator of your ills or misfortunes, more fingers point back at you. It is my thesis that it is the MMD government that eventually painted him as a villain. His very successor whom he had hand picked labelled him as corrupt and stripped him of his immunity. There was supposed to be a Chiluba Institute of Industrial Relations near Arcades shopping complex which the MMD tore down. The MMD governed for another 10 years before losing power and during that time, they never named any building, or institution after the modern father of Zambian democracy, Chiluba. You could not expect the Sata government to name buildings after Chiluba when Chiluba bypassed Sata when he named his successor. Sata remembered significant national heroes and named airports after them: Kenneth Kaunda, Simon Mwansa Kapwepwe and Harry Mwanga Nkumbula airports.

President Banda of MMD governed for three years before losing power, he didn’t see fit to honour Chiluba in those three years. He forgot his Wako ni Wako mantra that has served him so well elsewhere.

The other thesis is that Chiluba has been neglected because Zambia is imbued with the politics of revenge. Because when one is in power, he or she dishes out favours to his or her friends and relatives and rules dictatorially without let so that when they are ousted from power, revenge, justified or unjustified runs in the veins of the new governors. The previously detained and tear-gassed become the new detainers and tear-gassers.

Chiluba thought President Kaunda had mistreated him so he engaged in revenge politics. Unjustifiably even trying to revoke his citizenship. Those that Chiluba had wronged while in power teamed up to label Chiluba as corrupt leading to his loss of immunity and court cases. Mwanawasa and Sata died before completing their terms so no one could come after them. God took care of that.  But before Sata died, he had an occasion to strip Banda of his immunity and criminally charged.

Studying the brief history of Zambia, I can predict with almost 100 percent certainty that President Lungu after loosing power after this election or if he wins power until 2021, he will be stripped of his immunity and criminally charged because every President has been subjected to the same treatment, with slight variation in respect of President Kaunda. Chiluba probably endured the worst form of treatment. Common law politics of precedents has been set in Zambia, and precedents are powerful inducements.

Zambia has to stop revenge politics. But before that, Zambian leaders have to stop being corrupt, they have to stop cadre violence, they have to stop using illegally the Public a Order Act, they have to stop behaving as if they are Gods on earth and that they will never lose power. All empires eventually collapse and the unrelenting tool of accountability takes over. It rarely fails.

On this 5th anniversary of the death of Chiluba, it has to be pointed out that Chiluba is not forgotten, that not all is lost and that eventually his proper place in the history of Zambia will be recorded and buildings and institutions will be named after him. This rebuilding of the Chiluba image is already underway.  For example, Charles Mwewa has dedicated his 1100-page book on Zambia, the biggest and best book ever written on Zambia so far, entitled, Zambia:Struggles of My People & Western Contribution to Corruption and Underdevelopment in Africa to President Chiluba. The book is found both at Bookworld and Planet Books in Lusaka.

In his dedication, Charles says this: “Frederick T.J Chiluba, April 30th, 1943- June 18th, 2011. You died exactly one month before the proposed launch of this book. I would have loved you to read for yourself, especially on the Chiluba Matrix, Chapter 32. Despite the matrix, you will always be the standard by which the strength of Zambian democracy will be judged. And, indeed, ‘it is true that your greatest gift to Zambia was the establishment of a lasting and sound democratic system'”.There is so much positive written about Chiluba in this book, it is a neutral rather than biased evaluation that rings through. Chapter 32 extols the victory of Chiluba, in context.

The colonialists stated that “if you want to hide something from an African, put it in a book”.  Or use weapons of mass destruction. They colonized us by requiring us to sign a written contract, a contract which we never read because firstly, it was written, and we don’t read, secondly it was written in a language we did not know. To rehabilitate Chiluba and his significant contribution to Zambia, Zambians ought to read about what he did for Zambia, beginning with Charles Mwewa’s book and George Chomba’s article and not forgetting Richard Sakala’s book: A Mockery of Justice. We should annihilate the habit of not reading certain books because they were written by our alleged enemies or because those books extol the virtues of people we hate. When you point at someone who you allegedly think is uncivilized, look at who the majority of your figures are pointing at.

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University. He is the compiler of a book found at Bookworld and Planet Books entitled, The Case Against Tribalism in Zambia.