Who Do You Trust on Whether Cabinet Continues After Dissolution of Parliament? You Be the Judge.

Who Do You Trust on Whether Cabinet Continues After Dissolution of Parliament? You Be the Judge.

By Dr. Munyonzwe Hamalengwa
May 14th, 2016

As I have previously written, a constitution is a site of political and legal as well as economic and other struggles. Some items in the constitution are drafted ambiguously in order to serve the interests of the government in power or the state in general. Some items are drafted carelessly as an oversight of the legislators, sometimes it is due to incompetence or lack of care.

The new constitution of Zambia, as amended is one of the most inconsistent, contradictory, incompetently, sloppily and flawed constitutional documents that have ever been drawn. A number of excellent constitutional scholars like John Sangwa, and other stake holders have already pointed out the glaring problems with the amended constitution. What I have stated above is not new. This constitution was hurried in order to meet the election deadline so that the President could as he did on May 13th, 2016 at a press conference, state that the Government has delivered on the Constitution and therefore, among other reasons, ” reelect us”. The constitution was a sticking point as everyone knows. The government would have lost the election hands-down without delivering some form of constitution. This constitution is a palliative. It is half-baked and therefore half-eatable. There is a promise that it is a process and that later, a full constitutional amendment will seal the deal. A referendum is to be held on the constitution on the same day as the tripartite election on August 11th, 2016, something that no country in the history if the world has ever done, mixing a democratic election with constitutional matters!  The government decided that the constitution should be done in two pieces, even though the draft was in one piece. As everyone knows, a constitution that stands the test of time is usually a one shot document. Even the US constitution which has been amended over centuries was initially a one shot document and does not belong to the category of constitutional miss-mashing that the Zambian government wants us to get used to. In the USA usually the amendment involves just one or two major articles involving the most important developments if the period. The draft of the constitutional document in Zambia was in one piece when presented to the government but it was broken apart for political reasons as stated above. It was supposed to pass through a referendum as the PF had promised under Michael Sata. It was to be scrutinized by the people before hand. This never happened. For political expediency reasons. It is a terrible amendment in many respects, of course it is salvageable.

The reference to what happens to cabinet after dissolution of parliament is as clear as day and night, despite an obvious inconsistency. The relevant and only important article of the constitution as many others have already stated, is that, once parliament is dissolved, the MPs are no more, including Cabinet which is a composition of elected MPS. The branches of a tree do not stand on thin air, suspended, when the trunk of a tree on which they hang,  is cut at ground level. Even unelected but appointed members go as well because what enabled them to be appointed is no more. The cabinet cannot be served by other articles or subsections of the constitution which avoids the direct dealings with the effect of the dissolution of Parliament. Lungu and his government are simply wrong on this point.

Since a constitution is a site  of political and legal struggles, it is my thesis that the ambiguity was clearly and deliberately put there in order to afford the continuation and operations of cabinet in order to win the next election by the sitting government by hook or crook. The use of gvt  vehicles, money and other trappings of power and corruption goes hand-in-hand with maintaining cabinet ministerial posts. Some ministers would continue to commandeer the instruments of propaganda and communication like the Zambia National Broadcasting Corporation (ZNBC), Daily Mail and Times of Zambia by virtue of their being ministers. This attempted or ongoing constitutional coup by the government should be resisted using the rule of law instruments and constitutional provisions like freedom of thought, expression, speech, association, gatherings and transparency in a democracy. This is a struggle worthy fighting for, no matter what the price is. In the end it will strengthen Zambian democracy and a few hijackers should not be rewarded at the expense of hard fought Zambian democracy that we enjoy now. What is happening in Zambia is not what Clinton Rossiter had in mind when he wrote his book, Constitutional Dictatorship. Or is it? This is when a government uses constitutional norms or articles of the constitution to design a dictatorship and people are forced to surrender the rule of law because the constitution allegedly dictates otherwise.

Ask yourself this question, what is the usual practice in Zambia or in other constitutional or parliamentary democracies when Parliament is dissolved? Does Cabinet continue? Ask yourself again, what does  the primary article of the constitution of Zambia, say about what happens when parliament is dissolved? Further ask yourself this question, what has civil society, constitutional scholars, regular stakeholders, the opposition and the Law Association of Zambia (LAZ) say about the article dealing with the consequences of the dissolution of parliament? Who would you trust on this matter? The government on the one hand  or LAZ and other stakeholders on the other hand? You be the judge.

Dr. Munyonzwe Hamalengwa teaches law at the Zambian Open University School of Law and is the author of The International Law of Human Rights in Africa as well as The Case Against Tribalism in Zambia.

 

Africa is Largely Not Yet Uhuru

Africa is Largely Not Yet Uhuru

By Dr. Munyonzwe Hamalengwa

May 13th, 2016

The statement that the recent swearing-in of President Museveni for the fifth consecutive term as leader of Uganda, garnered the biggest attendance of African Heads of State speaks to my thesis that Africa is still largely “Not Yet Uhuru”. How can African leaders condone a clearly unfree election, with documented evidence and also visibly seen on TV, YouTube and Blog postings and the evidence, undisputed, that the main opposition leader was repeatedly imprisoned during the election itself? Even now during this inauguration, the main opposition leader was detained! Where else in the world in the recent past has there been detentions of opposition leaders during the very election that is supposed to determine a democratic outcome? Can one exercise freedom of association, speech, expression and freely campaign while in prison? And you are the main opposition leader? And the outcome of that election is regarded by anybody including the Heads of State who attended the inauguration as having been free and fair! P The European Union, the USA, Makerere University Faculty in the School of Law and many others deemed those elections as a traversity. The main opposition leader was even prevented from seeking the only remedy in a democracy, that is the remedy of judicial review. The court was seized with a weak petition from a lightweight opposition leader who was allowed to file a petition for judicial review and consequently the petition was dismissed by a clearly corrupt judiciary, according to some reports. If the main opposition leader Kizza Besigye was allowed to file an election petition, the Court would likely have treated the Petition a little more seriously as there would have been direct evidence of detentions and rigging. The result of the judicial review may not have been different but still some transparency and rigging as well as judicial corruption would have been exposed in the process. By barring Besigye from tendering the evidence through litigation, they hope that the evidence had been buried and will be buried forever. It rarely works out that way. Evidence leaves fingerprints and echoes into the future. A retired Ugandan Supreme Court judge previously stated that a previous judicial challenge to a Museveni election victory was made in error and he was very sorry about it and that that election had not been free and fair. Some judges develop consciences once they retire.

Look at some of the leaders who attended this inauguration, Jacob Zuma is a disgrace to his nation, Robert Mugabe is an un indicted criminal for his human rights violations which are well documented and he clings on to power to prevent an inevitable criminal indictment, al-Bashir is a wanted criminal by the International Criminal Court, Tanzanian leaders, former and current have a special relationship with Museveni because they ousted Dictator Idi Amin together after Amin had invaded Tanzania and Museveni had studied in Tanzania and was operating out of Tanzania, so this was an unavoidable obligation, stating it generously, Zambian President Edgar Lungu is facing an election this year and his statement that Ugandans must accept the election result was completely denounced by the Ugandans and the evidence of that is in the newspapers, but Lungu’s statement was also aimed at Zambians to accept the August 11th, 2016 election result no matter how they may be obtained especially if they are in favour of the government, and other attendees are similarly or analogously affected.

Museveni took time to denounce the International Criminal Court (ICC) during the introduction of wanted war criminal al-Bashir, as a preventative measure because Museveni after losing power will be bundled to the ICC for his abuse of power during his reign. Museveni himself had used the ICC against an opponent when it suited him. He wants to use the international judicial system when it suits him just like he is abusing the Ugandan judicial system to his advantage. He is learnt from his previous backers, the USA and all western governments. That is what they have always done. They designed the international criminal  system for the prosecution of others (but not themselves) including leaders of former colonies while removing jurisdiction from the prosecution of colonial crimes, the crime of abetting apartheid, environmental destruction through mining and oil production pollution, international corporate criminality, bribery and corruption of African leaders, tax evasion, assassination and overthrow of democratic African leaders and so on.

But Museveni’s criminality has not escaped the eye and ear of US Republican presumptive Presidential nominee Donald Trump, himself a narcissistic personality who stated in February that Museveni belongs in Jail and not in State House, along with Robert Mugabe. Could Donald Trump as President ironically end up being the Redeemer of Africa, Trump the harbinger of Uhuru?

It is not yet Uhuru in Africa. Trump would have a lot of work to “Uhuru” Africa. Dictator Kagame who says his people forced him to go for the third term, a clear lie because he could have refused, as Sam Nujoma  of Namibia did, would have to dealt with. The following dictators have been in power forever and they would have to face Trump the Redeemer: Yahya Jammeh of Gambia, Idriss Deby of Chad, Isaias Afwerki of Eritrea, Joseph Kabila of the Democratic Republic of the Congo, Sassou Nguesso of the Republic of the Congo, Nguema Mbassongo  of Equatorial Guinea, al-Bashir of the Sudan and Paul Biya of Cameroon. He already has his sights on Museveni and Mugabe.

Hillary Clinton will, however, become the President of the United States of America, and while Trump would send tremors into the hearts of African dictators, they will find succour in the Presidency of Hillary Clinton and Africa will continue to be largely “Not Yet Uhuru”.

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University School of Law and is the Author of The International Law of Human Rights in Africa: Basic Documents and Annotated Bibliography, and as well, Getting Away With Impunity: International Criminal Law and the Prosecution of Apartheid Criminals.

 

The Greatness of Boxer Floyd Mayweather Jr.

The Greatness of Boxer Floyd Mayweather Jr.

By Dr. Munyonzwe Hamalengwa
May 9th, 2016

 

The destruction of British Boxer Amir Khan by Mexican Fighter Saul Canelo Alvarez on Saturday May 7th, 2016 for the middleweight title attests to the boxing greatness of Floyd Mayweather, Jr.  Mayweather is the only fighter who had defeated Alvarez, a boxing machine in his own right. Until Mayweather defeated Alvarez a few years ago, this pugilist had demolished everyone else and was second only to Mayweather in nearly achieving the unachievable which is to equal or surpass the record held by Rocky Marciano of 49 victories against no defeats. Only Mayweather has achieved the insurmountable goal of equaling Marciano. Alvarez will never achieve it. Until Mayweather came along, Alvarez was on his way to achieving this enviable record.

Khan is a good boxer, albeit with a weak chin. All his four defeats have come by way of knockout. Khan had even been flexing his muscles to fight Mayweather and had boasted that Mayweather was avoiding him. As Manny Pacquiao of the Philippines had been boasting until he was made to look like an ordinary boxer, and not the great boxer that he thought he was, on May 2nd, 2015 by Mayweather. Mayweather’s boxing skills were displayed by his ability to neutralize every boxer he ever faced and he faced some real great welterweights like Shane Mosley, Oscar de la Hoya, Zab Judah, Carlos Maidana, Miguel Cotto, Canelo Alvarez, Manny Pacquiao, Arturo Gatti, and many other greats of his era.

> Mayweather’s greatness can also be measured by the number of great boxes whom he fought who were bigger, heavier and taller than himself. Perhaps, only Mike Tyson fought more heavier, bigger and taller boxes in his division than Mayweather did in his division.

> Mayweather has other enduring qualities beyond his boxing skills that African governments can emulate. African governments can use Mayweather as a consultant in economic autonomy and independence. Mayweather wrestled his contract from his greedy and manipulative promoter and decided to be his own marketer and promoter. No one now owned Mayweather. What he earned remained in his pocket. Whatever was promoted during his fights, Mayweather ended up getting a great slice of the revenue therefrom. Some business schools are using Mayweather’s business model. He is the first boxer and probably the only one for a long time to earn over US $200 million in one boxing match. This is great for a person who did not go far in school. Most African governments cannot shake western control over them.

Mayweather gave himself the middle name of “Money” and called himself TBE or The Best Ever. This is the man who walks the talk. It is hard to argue that he is not “Money” or that he is not TBE.

Dr. Munyonzwe Hamalengwa is a great fan of boxing.

Political Campaigns Are Like Trials Before Judge and Jury

Political Campaigns Are Like Trials Before Judge and Jury

By Dr. Munyonzwe Hamalengwa
May 8th, 2016

A political campaign is like a trial before Judge and jury. Even when you think the evidence is in your favour, a slight slip on an important point by one witness, can lose the case for you. The O. J Simpson trial in the USA is a case on point. The prosecution (the government)thought they had the case won, they thought they had mountains of evidence. The victory was in the bag. Alas, one witness in the name of Mark Furhman derailed the prosecution case and the defence (the opposition) won. The defence reduced prosecution evidence from a mountain to a mole hill, to nothing. The roles can also be reversed where the opposition (the defence) may think that they have so much damning evidence against the prosecution (government ) in form of police misconduct and corruption in the case, witnesses lacking in credibility and other serious weaknesses undermining the case, only to be derailed by one defence misstep like a lying witness or a stupid defence lawyer’s submission to the jury on a crucial point.

What prosecutors and defence lawyers have learnt in their practices is that you can never pre-judge how a jury will rule. There are like in politics, many hidden forces that influence the decision and outcome. The police can influence the crown witnesses or jury members as the police know where all jurors live and they know whether or not they are broke or are drunkards and can manipulate them by corrupting them. The Judge who appears impartial can manipulate subtly sometimes by his slanted instructions to the jury or can tip the balance in favour of one side by his rulings on what evidence goes in or what evidence is inadmissible. The judge is equivalent to the Electoral Commission or the Judiciary if an election result is challenged. The police is equivalent to the police who may deny a permit to a party from holding an election campaign while allowing one party to campaign unobstructed. To the people it may appear that the police or the Electoral Commission is applying the law in a neutral fashion while it is not the case or may mot be the case. Witnesses or voters may be bought. The Electoral Commission or a Judge could be bought. Sometimes the witness or the Electoral Commission or a Judge is courageous enough to refuse a bribe. There are still tough minded people out there who listen and respect the truth and their conscience.

Some of us who have conducted jury trials never predict what the result would be in advance. I have lost jury cases I thought I had won and I have won jury cases where I thought I had no chance. Most times hidden forces do the winning or losing for you. Sometimes you only find out accidentally after the fact what made you win or lose.

A long time ago, John Major of Britain thought he had the re-election victory in the bag, only to lose miserably to the opposition, just like in jury trials. In the USA, John McCain (a white man)it is rumoured that he thought he could not lose to Barrack Obama ( a Black Man) just as Hillary Clinton had thought. But they were trounced by Barrack Obama. Closer home, Rupiah Banda from what people say, never thought that he could lose to Michael Sata. But he did.

Just the other day, no one thought that a Muslim whose parentage was from Pakistan could win the position of Mayor of London, the heartland of imperialism. But he won. The candidate was a White mainstream face of British colonialism. But voters have evolved. They can never be taken for granted even in Zambia. Tribal talk no longer sways, potent as it is still used by some politicians. In January 2015, the difference in the margin of victory in the presidential election was only 27,000. Zambians have matured. All major political parties contain people from all tribes and age groups and both genders.

The point is, never count the chickens until they hatch. Predicting and pronouncing victory in advance is allowable as a propaganda and psychological tool. But never take it seriously. There are many hidden forces that can tip the victory one way. Most rulers in the world are not the legitimate people’s choices. They are impostors, just like all types of quack pastors who predict who is going to win any election. Politics is the art of the possible.

Dr. Munyonzwe Hamalengwa was once Vice-President of the University of Zambia  Students Union (UNZASU) and now teaches law.

 

Brief Introduction of Justice Michael Tulloch

Subject:  Brief Introduction of Justice Michael Tulloch

Brief Introduction of Justice Michael Tulloch,
Court of Appeal for Ontario

By Munyonzwe Hamalengwa,
May 8th, 2016

To be read By Valarie Steele on the Occasion of the Dudley Laws Day.

All things being equal, I am assuming Justice Michael Tulloch is present on this occasion and will give the keynote speech on this great day honouring a true community stalwart, now departed, Mr. Dudley Laws. I am not present on this occasion because I am a long way in Africa where I teach law, a slight deviation from what I was doing in Toronto for 25 years. Michael Tulloch and I go a long way. Thirty years ago,  this September, Michael, Glen Gayle and I were the only three black students in our first year of law school comprising of five sections each with sixty -five students at Osgoode Hall Law School. Of course I had known Michael several years before when he used to attend conferences organized by the then dynamic Forum for African Students in Toronto (FAST).There were in total, 325 first year students, Osgoode Hall Law School being the biggest law school in the commonwealth. For some reason, the school decided to put the only three Black Students in one class, Section E.  The school could not fathom how important that arrangement would be to me. I was a great beneficiary of that arrangement.  It was because Michael became my lifeline to the school and to my academic success. I nursed Michael’s generosity from day one. You see I was working full time when I got accepted into law school. I was teaching several courses at York University and I was also the Head of the African Studies Department and doing PhD studies in Political Science.

Since I had no scholarship, I didn’t want to give up my job while attending law school. Michael made very good notes and generously gave them to me. Michael also secured excellent summaries from other studies and gave them to me. This continued right into the Bar Exams after graduation from Law School and one year of articles with a law firm. Before being called to the Bar I had established my own practice on June 1st, 1990 before the start of the Bar Admissions Course. In those days it was possible to start a practice before being called to the Bar. There was also no attendance taken during the Bar courses so you could be anywhere as long as you wrote and passed the exams. I was operating out of 489 College Street with a team of lawyers who gave me many immigration files and I would be all over town at immigration centres representing clients. Michael was in class taking notes and collecting summaries and handing them to me. During the evening and weekends, Michael and I found a perfect place to study and we sometimes pulled all-nighters. We used the Fairview Mall library and when the library closed we convinced a guard at the Fairview Mall to let us study until the wee hours of the morning. Michael I have thanked you before for enabling me to do what I had to do to survive and you made it possible for me to pass the exams and I wish to thank you again before the eyes of the world. Without you I would have had difficulties making it through the exams as I did not attend many classes.

After being called to the Bar, Michael and Glen joined the prosecution service and I became defence counsel. Michael later became defence counsel. He is now a Judge of the Court of Appeal. Michael and I had made an arrangement which we kept for years that every first Friday of each month, we would see a new movie together. We watched a lot of movies together after which we would have dinner.

Thank you again for that friendship Michael. Those were some of the best days of my life which now I can only recall through the mists of time. During those times, we took time to involve our families. We visited  each other’s homes. Michael’s first child was born at the same time as my second child. Michael came to dinner when my parents visited from Africa. My father up to his death kept asking me how that clever boy was. He also liked him. Michael had a red car and the front passenger seat was my permanent seat.

Michael your friendship and generosity to me was not unique. You were doing that to everybody and to the community. And for that you have been richly rewarded in your life. You also stood by me by writing letters of support during my own professional hiccups. Thank you and thank you. When I was asked by the Black Action Defence Committee to find a dynamic and all encompassing personality to deliver the Keynote Speech on the Dudley Laws Day on Today’s date, May 8th, 2016, I did not hesitate in calling on you and you as always, generously agreed. I thank you from the bottom of my heart.

Dr. Munyonzwe Hamalengwa
Lusaka, Zambia.

The Importance of Education as An Equalizer

The Importance of Education as An Equalizer

By Dr. Munyonzwe Hamalengwa
May 3rd, 2016

The excitement of the Obama family because their first daughter Malia Obama has been accepted at Harvard University epitomizes the continuing importance of education as one of the most if not the most important platform by which anyone can improve his or her life chances of living a successful life or if transcending the circumstances of their birth. President and First Lady Obamas would not be where they are without education at the best schools. Their daughters need not work a day in life because their parents gave already done the heavy lifting for them, but no there they are going to Harvard because they want to blaze their own trail. Education gives you a measure of independence. You cannot rely on someone else ‘s money or success because  that could diminish or finish or taken away. You have to grown on your own roots.

Of course there are many ways of getting rich but the surest way is through solid education. By rich I don’t only mean material wealth. I mean overall rich like in self confidence, discipline, character, competences, etc. Most important of course I mean living  a better life than the circumstances in which you were born.

Not everyone can be an Kalusha Bwalya or Esther Phiri. Not everyone can be a Lionel Messi or Cristiano Ronaldo or Usain Bolt. Not everyone can join a political party and be a President Edgar Lungu or be the beneficiary of government contracts and be wealthy. Not everyone can get free money like Donald Trump got from his father or the Kennedys got from their father. How many of us can be a Floyd Mayweather and make $200 million in one fight?

It is much much easier to make it through the educational route than to be a Mayweather, Muhammad Ali, Usain Bolt, Esther Phiri, Kalusha Bwalya, Cristiano Ronaldo, Lionel Messi etc etc. And with education, you don’t have to aspire to live large in comparison to the stars I have mentioned above. You can aspire to live modestly by being able to be your own person, to get a job or start a business, to be able to pay your mortgage, pay your children’s school fees and be comfortable in your own skin and not aspire to be conferred Honorary Doctorates or display fake degrees manufactured in India or Nigeria or the USA.

Educational cannot be achieved alone. It is a community endeavour. In developing countries like Zambia, the government has to provide the enabling environment, build schools, provide desks and books, provide bursaries and live up to the commitments it makes to students studying at home and abroad. I pity the students who went abroad on scholarships and become partly abandoned by our government.  The government can do better.

Since education is perhaps the most important avenue by which one can transcend their birth circumstances, it is critical that everybody be accorded the support one needs to achieve this goal. Education is a right in my view.

Dr. Munyonzwe Hamalengwa practiced law in Canada for 25 years. Education made it possible for this.

Open Letter to President Kaunda: Where is the Book?

Open Letter to President Kaunda:  Where is the Book?

By Dr. Munyonzwe Hamalengwa
May 2, 2016

It is my submission that Presidents owe us good governance when they are in office and owe us another obligation when they retire and that is to explain to the nation the reasons they made certain choices of crucial importance when they were in power. Even if some explanations may be informed by post-facto justifications and not afore-thought decisional predilections, they are still worth than nothing at all. There are so many questions that require answers concerning the governorship of the most consequential President in Zambian history. This is the President who delivered us from colonialism, the President who stitched the nation together when it could have torn itself into tribal and regional fiefdoms, the Barotse region wanted independence, Nkumbula after being the second leader of the Independence Party after Lewanika, was sidelined to heading a party centred in Southern Province, the President put together the most tribally-representative cabinet to date, including good educated and technocratic ministers, the president built the first university, the first President decided that aiding the liberation movement at great economic and political and other costs to the nation was a worthy goal, the President determined that social spending in health and education was the way to go, the President decided that it was a great call to encourage diversification into agriculture by giving cheap loans for fertilizers and agricultural equipment and to build farrows (migelos) to stem soil erosion, that national military service for students built national character, that one Zambia one nation should be pursued, that non-alignment in international politics was a safer foreign policy method, that the Tazara railway line be built by the Chinese and that Zambia become a one-party state and more than a million other decisions. A lot of questions have been raised. We need answers.

What influenced Dr. Kaunda to make all the crucial decisions indicated above? Why and by what processes? How? Does he regret any one of them? Could he have appointed another minister and not the other one? How and why did he ignore tribal sentiments and how did he handle tribal sentiments? If he were to govern now, what would he do the same or differently.?

A lot of former presidents have written books after leaving office. I like the books written by Jimmy Carter and Bill Clinton. Ian Smith’s book is a dynamite. De Clerk has written a book. Mandela wrote several books after leaving office. Tony Blair has explained why he did what he did. Fidel Castro’s book is second to none. Obasanjo of Nigeria has several books written by him with the assistance of my former colleague from Canada. Nkrumah is my hero in writing books after leaving the office. And so on and so on.

Current leaders can learn a lot from books authored by previous presidents. The nation of Zambia would benefit tremendously from hearing from President Kaunda. Maybe some of the criticisms about his governorship would be tempered if we heard directly as to why he made certain policies and decisions.

> One of the easiest books to write is a presidential memoir. Presidents have daily memo and appointment books. There are minutes written of most things they do. The people they meet like other presidents also keep daily official minutes. The president’s life is regimented so it is easy to obtain the information from the diaries which are official and from other official documents. The books of Mandela, Clinton, Carter, Blair and so on clearly indicate that they are derived from official diaries. A president can fill in the gaps. So why not write now Dr. Kaunda? This is not for personal gratification. It is for the benefit of Zambia. Presidential immunities continue after leaving office, so should the obligation to impart knowledge and experience to Zambia through a book or books.

I also know how easy it is to write from dairies and documents. I penned my book Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General (1992) from the existing raw materials and recollections and talking to friends who experienced some events at the same time. A president can have a team of authors or ghost writers. It is permitted. It is not a secret.

I am reliably informed that President Kaunda has a book but that one of his children is said to have spirited it away and it has not been released. That book if it exists is not a family book. It is a common heritage to Zambia and the humankind for their benefit.

President Kaunda will forever remain the most important and consequential leader Zambia will ever have had, thus he owes us as Zambians, the benefit of the gravitas that enabled him to stir the Zambian ship safe to harbour for 27 years.

West Africans have a saying that when an old man dies, a library burns to the ground. Can you imagine how many millions of libraries burn when a President dies. President Kaunda, where is the book?

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University and is the compiler of The Case Against Tribalism in Zambia. He is also the author of Thoughts Are Free.

The Truth About the Special Investigations Unit in Ontario

The Truth About the Special Investigations Unit in Ontario

By Dr. Munyonzwe Hamalengwa
May Ist, 2016

The real reason why the Special Investigations Unit (SIU) behaves the way it does towards police who kill Blacks had never really been articulated. This article will put forward a thesis.

First of all, it is important to examine the historical composition of the Director of the SIU since the office and agency was created in 1990. The Director has always been a white male, as if this was not bad enough for this position, the white male has always been a prosecutor from the criminal courts or other agencies that do the prosecution of people.

Further these prosecutors have always been working with the police who charge people and gather the evidence the prosecutors rely on convicting people. The trend goes, the very investigators working for the SIU to investigate police officers were former police officers. How can any objective person or government expect such a composition of prosecutor-police turned SIU investigator – investigating police misconduct produce a report that is not biased towards the police?This trio works in unison. The result is police impunity. And it is not an accident. It was deliberately set out by the government to be this way.

There is absolutely no reason why the Post of Director of the SIU could not have been rotating between prosecutor, defence counsel, female and male, Black or other minority and White, or retired Judge or human rights  advocate. Everybody these days sings about diversity but why not in the SIU Directors’ position.

Isn’t it so apparent as to why the SIU operates and produces the results that we are complaining about? This is a case where when there is bellowing smoke, there is clearly a fire.

Dr. Munyonzwe Hamalengwa is a Professor of Law and has written extensively on police matters including initiating the first class action law suits against Ontario police for racial profiling and carding when he was a lawyer for 25 years in Toronto, Canada.

Police Impunity in Zambia and Remedies

Police Impunity in Zambia and Remedies

By Dr. Munyonzwe Hamalengwa
April 30, 2016

The police enjoy impunity everywhere. The reason is that they are the defenders of the status quo and those in power would have their status threatened and disturbed if the police did not enjoy impunity. The police protect those in power. They protect the class structure and societal hierarchies.

Though the majority of ordinary police come from lower classes, they enjoy some measure of power when they get the uniform and weaponry and all of a sudden can command the attention of the citizenry by virtue of the authority invested in them. The police also enjoy access to information and they navigate by virtue of this information, who in the establishments has what wealth and power, who has what, who is corrupt, which judge convicts or acquits, which minister goes out wth whom etc. That is why Edgar Hoover, the Director of the FBI in the US could blackmail and hold to ransom just about every US president and Senator from 1921 to 1973 when he died. Access to information by virtue of his office was potent.

The prosecution services need the police to charge individuals and get convictions. The judiciary depend on the police and prosecutors to function. The politicians need the police to maintain law and order. So police are given a zone of autonomy including licensed impunity in order for the society to function and maintain the status quo.

There are many attempts to set up systems to control police impunity and inculcate accountability. In some countries, you have civilian bodies like Special Investigations Units (SIU), civilian oversight bodies for police accountability, civil rights divisions, police services Acts etc. Some work depending on which society. Most don’t work. Police continue to enjoy their impunity.

In Part 1, I suggested that one avenue to fight police impunity is to engage in massive class action law suits against the police services and the ministry responsible. I cautioned that the judiciary should be above board for this strategy to work. You would also need a team of dedicated advocates to propel this strategy, lawyers who are steeped in  public interest litigation and constitutional law.

In this article constituting Part 11, I wish to suggest that any local judicial strategy must be supplemented by external remedies. I am referring to engaging the International Criminal Court, depending on the scale of police violence, police impunity, political violence and so on. It is my thesis that Kenyan democracy came back on track because of the involvement of the ICC in that country. When Odinga lost in 2013, he did not embark on violence because of the Kenyan experience with the ICC. Of course the ICC case was not successful because of state interference with witnesses. However, in future, the opposition and civil society has to independently compile evidence by interviewing witnesses, through video taping and other methods of collecting evidence so that even if the state interferes with these witnesses, this same evidence can still go in as an exception to the hearsay rule. State interference would provide an avenue to claim the exception to the hearsay rule. This evidence would have been taken contemporaneously with the events, it would be reliable, taped and visible. The witnesses need not testify because the evidence would speak for itself. It would have been taken under oath. The witnesses can recant several years later but the evidence would still go in. It would still be fresh.

This goes the same for evidence of police violence and impunity. This evidence should be carefully gathered on a continuing basis by civil society, human rights commissions, opposition parties and independent lawyers and civilians. Democracy requires eternal vigilance.

I am aware of the problems relating to the engagement of the ICC which seems to target Africans for prosecution. This question will be the subject of a separate article. I see no problem in engaging the ICC if there is evidence of police impunity with state duplicity.

The UN International Covenant on Civil and Political Rights and its Optional Protocol also provides for reporting of human rights violations committed by police, political parties, governments and security agencies to the UN Human Rights Commission. Zambia is a signatory to the Covenant and its Protocol. The condition precedent is that local remedies would have been exhausted. Police impunity is a measure indicative of the exhaustion of local remedies. Whenever local remedies like individual litigation or class action lawsuits do not work and the state is unable or unwilling to reign in police impunity, external remedies have to be invoked. Many developing democracies are dependent on foreign aid and censure from the ICC or The UN Human Rights Commission imposes a measure of deterrence on these regimes. Human dignity is too important to be left to the whims of local police and political forces in this our globalized world. Think outside the box. The maintenance of the rule of law and the enjoyment of our constitutional rights is no play in the park.

Dr. Munyonzwe Hamalengwa teaches law at Zambian Open University and is the author of Getting Way With Impunity: international Criminal Law and the Prosecution of Apartheid Criminals. He practised law in Toronto, Canada for 25 years and developed the strategy of class action law suits against police racial profiling.

Police Impunity in Zambia and Possible Remedies, Part 1.

By Dr. Munyonzwe Hamalengwa
April 26, 2016

Police brutality in Zambia is a well known fact. As are police impunity and corruption.  Even the far away US Department of State Country Report on Human Rights for 2015 recently noted these facts. This article deals with possible remedies to deal with police impunity since the Human Rights Commission and individual litigation routes are impotent.

First let me deal with some issues that impinge and directly influence police brutality and impunity everywhere including Zambia. Police behaviour, like judicial behaviour  everywhere reflect the attitudes and imprimatur of the state apparatus in which the police operate. They mirror the attitudes of those in power. When state attitudes change, police and judicial behaviour usually change albeit with a time lag at times. There is sometimes not a one-on-one correspondence. My statement and thesis are general. Let me give just two examples of the Apartheid  State in South Africa and the United States during its apartheid era. Police and judicial behaviours reflected the approval and attitudes of the status quo.

If the Zambian police behaved contrary to the mindset of the status quo, they would have long been reprimanded and held accountable. The Zambian police would not have gotten away with impunity. The Zambian police have been filmed brutalizing innocent citizens with impunity. The police have not been sent to quell violence by political cadres. The police usually stand by and observe political cadres maim, injure and beat up innocent citizens trying to exercise their constitutional rights to freedom of assembly. The status quo has not taken action even in brazen cases of police brutality and harassment because the state approves and condones this behaviour. Thou shall know them not by their words but by their deeds.

The state has the capacity to quell decisively unruly behaviour when it wants to and when it decides to exercise will-power. The evidence is there when the state sent in the arm to deal with recent spates of xenophobia in parts of Lusaka. That is how the state acts when it disapproves of an disorderly and criminal conduct. It impartially acts to bring peace and order. Xenophobia was short-lived as a result. The state also sent a strong message that by bringing in the army to deal with the xenophobic violence, it did not trust its own police. Why should ordinary citizens? By parity of reasoning, the state was also sending a message that the state itself cannot be trusted because police behaviour reflect state behaviour. Any time political cadres are attacking innocent citizens, the state should send in the arm to act decisively against the cadres and not against the victims. That is how to win support and be truly above the fray.

Now as to the remedies. Individual litigation against police brutality is always futile and costly. I propose the introduction of class action law suits against the police and the ministry responsible for policing. Legislation on class actions may be a condition precedent, however the constitutional court has been created to deal with constitutional matters which police brutality and state connivance present. There may be no need for legislative action authorizing class actions. There is an Ontario, Canada precedent for class actions legislation. In terms of jurisprudence on class actions against police misconduct, New York has good precedents. Legislation and jurisprudence from other jurisdictions on class actions is simply a matter cutting and pasting and this can be done in less than four weeks of research by two legislative interns at Parliament and two clerks at the Supreme Court of Zambia or Constitutional Court.

Class actions send immediate messages to the government and police that the old ways of doing things are over. Significant damages could be ordered upon success of a class action law suit.

There is one more thing to be dealt with regarding class action law suits. Does judicial behaviour reflect the attitudes of the state? If the answer is yes, class actions is no remedy. A cause without a remedy is an injustice. The bigger question however, is, should innocent citizens be subjected to perpetual brutality and impunity of the police with state connivance and condonation without remedies? Not in a democracy.

 

Dr. Munyonzwe Hamalengwa teaches law and is the Compiler of the recent book entitled, The Case Against Tribalism in Zambia(2016).

 

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