Monthly Archives: February 2016

Law, Order and Elections in Africa

By Dr. Munyonzwe Hamalengwa
February 25th, 2016

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Can the grade 12 yardstick as a minimum for running for political office in Zambia that has been constitutionalized be the basis for other similar constitutional buttresses? This is an area of law where we must not be afraid of slippery-slopes. We must embrace slippery-slopes. One reform must lead to another reform. The reason is that democracy in Africa is becoming an endangered species when the behaviours of the Musevenis, Kagames, Mugabes, Kabilas and so on are allowed to continue. Most leaders in Africa after reforming their constitutions to allow for two terms maximum for each leader, turned around to try to re-reform the constitutions to allow for a third term.  Chiluba in Zambia tried, Obasanjo in Nigeria tried, Nujoma in Namibia allegedly refused to be conscripted to that move, Kagame and Museveni and the guy in Burundi bulldozed their way regardless of what the electorate may have had in mind.
Consequently to ensure that Presidential candidates in Zambia and elsewhere in Africa (but starting with Zambia) do not become dictators once elected into office, there has to be a constitutional amendment or some binding contract that must be signed in public that the would-be-presidents must read and be familiar with three of Africa’s best books written by one African, on Governance and the Rule of Law.  The author of these three books is one of Africa’s best if not the best constitutional and academic lawyer,  ever. He is a Nigerian by the name of B.O. Nwabueze. His three books are the following: 1. Constitutionalism in the Emergent States, 2. Presidentialism in Commonwealth Africa, and 3. Judicialism in Commonwealth Africa.
Nwabueze wrote these books after realizing that “for newly independent countries, the greatest political malady is the unwillingness of the rulers to relinguish power”. And these books were written in Zambia where Prof. Nwabueze was teaching at the University of Zambia Law School.  He came there as a Professor in 1970. They were written in light of Nwabueze’s direct experience in seeing Zambia, a once fledgling democratic country turn into a one-party state in a process that he Nwabueze unwittingly participated in. President Kaunda had appointed Nwabueze among others in 1972 to form a committee to draft the one-party-state constitution. Honourable Mainza Chona was the Chairman.
The draft white paper produced by the Committee was almost wholly rejected by the Government and only what was useful to the institution of the one-party-state was retained and more was added by the Government to the previously well-thought out design to create a one-party-state in Zambia. The Commission was merely window-dressing to come up with anything to justify what was already designed. This commission like most government commissions are vehicles for justifications for what is already fait  compli or already designed.
It is clear from the trilogy of Nwabueze’s books that his experience in the commission to establish a one-party-state, unwittingly on his part, resulted in quick succession the three books mentioned above. Constitutionalism came out in 1973 when the one-party-state was inaugurated, Presidentialism came out in 1975 and Judicialism came out in 1977. It is clear they were researched at the same time while Nwabueze was on the Committee researching and drafting Zambia’s one-party-state constitution and teaching at our Law School that was producing our current leaders, judges, lawyers and prosecutors.
It would be fitting if Nwabueze’s experience and books on governance and rule of law which were written and produced while Nwabueze was in Zambia, could now be turned into positive use by requiring any aspiring Zambian Presidential candidate to sign a contract to read these books and be familiar with them so that any leader who emerges should never bring back a one-party-state or its facsimile or photocopy. Or better still there could be a constitutional requirement that any such leader should be animated by the dictates of good governance and rule of law on the pain of impeachment. These three books are a treasure to good governance and rule of law. You cannot read them and then become a dictator. The question now is: Did Kaunda, Chiluba, Mwanawasa, Banda, Sata, Scott, Lungu, Hichilema, Nawakwi, Sampa and other leaders of Zambia read these three books. There are many months before the August 11, 2016 election date for any leader to read these books. I assume there will be Presidential debates at which questioners can ask the candidates about governance and rule of law and whether these candidates have read these books. There is a lot about Zambia in these books.

Dr. Munyonzwe Hamalengwa practiced law in Canada for 25 years.

No land, no freedom

Munyonzwe Hamalengwa | May 14, 2015
Pambazuka News
Land ownership and its reclaim are the next phases of Africa’s struggle for total freedom. Do not now begin to sell off Africa to foreign landownership. No other continent does.

Does colonialism of a special continuing kind still pervade Africa to the extent that it could be stated that there is still no freedom in the land of Africa? Freedom is always associated with civil liberties but it is deeper than that. You cannot enjoy your civil liberties if you don’t exercise ownership of the land in your own country. As the May issue of the NewAfrican magazine makes clear, “all over the world, land ownership is critically sensitive issue because of the connection between land, economic power and real freedom”.

The Western world realized this a long time ago when they decided to invade other countries to seize their lands and when, if they were defeated later on in anti-colonial struggles, they created constitutional loopholes whereby the colonialists continued to hold on to that land even while losing political power. The whites in South Africa, Zimbabwe, Namibia, Kenya, Zambia, Congo, Botswana etc continue to hold on to the land. The best pieces of land in these countries continue to be held by those who imposed colonialism centuries ago. Pieces of land may have transferred hands here and there, but the majority is still owned by whites.

This state of land ownership is not detectable in Western countries. There is no land in Britain, Germany, France, Japan, Canada, Australia, America, New Zealand etc that is owned by Africans or foreigners. China doesn’t allow foreign land buyership or ownership. But China is buying or given huge pieces of land in Africa and elsewhere. Western countries have consigned their original aboriginal land holders to barren pieces of lands called reserves which still exist in the 21st century. Aboriginals have no freedom in the land in the Western world. Very soon, Africans will have no freedom in their own lands because colonial land ownership patterns and buyerships are pervasive.

The current issue of the NewAfrican magazine is devoted to the study and analysis of the deep crises in landownership in select African countries. The countries studied with significant lessons and application for all African countries are: Namibia, South Africa, Zimbabwe, Kenya and Sudan. It makes for depressing but educative reading. There is a recent story in Choma in Southern Zambia where a white farmer is reported to have displaced villagers from a huge chunk of land by legal subterfuge. That story, if true, represents the tip of the iceberg concerning the still precarious lack of freedom in the land of Africa. If not true, it still raises tremors about the possibility of land alienation from its true owners in Africa.

Once land is grabbed in the colonial- style or sold in the capitalist -style, it rarely reverts back to its original owners. The Aboriginals in Canada, USA, Australia etc know this all too well. The Aboriginals in the whole of South America know this as well. That whole piece of continent is now owned by Portuguese and Spanish colonists. Africa conquered back some of its land during the anti-colonial struggles, albeit good and fertile pieces of it is still in the hands of the colonists and their progeny. Ninety percent of the land in Namibia is still owned by the colonists. Zimbabwe had to assert itself to reclaim some of the land.

Land ownership and its reclaim is the next phase of Africa’s struggle for total freedom. Do not now begin to sell off Africa to foreign landownership. No other continent does this despite the enticements of silver and other wares which were the original causes of Africa’s depopulation to the benefit of America and other countries. Our land is our last stand. No land no freedom.

* Munyonzwe Hamalengwa PhD’s in law is entitled, ‘The Prosecution of Apartheid Criminals in Canada’. He practised law in Canada from June 1989 to June 2015

The need for diversity and transformation of legal systems

Munyonzwe Hamalengwa | October 03, 2012
Pambazuka News
 By Dr. Munyonzwe Hamalengwa
This book exposes the reality that the legal system is not intended to produce justice, except by accident, and then largely to the benefit of the agents of the system and to rich and powerful users of that system.

‘The Politics of Judicial Diversity & Transformation – Canada; USA; Australia; South Africa; Israel; Colonial and Post-Colonial World and International Tribunals. Munyonzwe Hamalengwa. Africa in Canada Press; Toronto, ON, Canada. 2012. 546 pages.

Munyonzwe Hamalengwa has written a big book, anchored in a powerful theory. The theory is both simple and profound: white supremacy (the Western European mission and project to control the world’s resources through armed force and ideology) is embedded not only in their own institutions and practices but also in those of the countries they invaded and colonised.

Hamalengwa, a lawyer in Canada, has been practising law for over 20 years. It is not surprising that his particular focus is on the impact of white supremacy on the legal system, often called – incorrectly and misleadingly – the justice system. Hamalengwa’s thesis is that the legal system must be transformed to a justice system. The transformation requires that all agents of a justice system – police, Crown attorneys, jurors, tribunal members, judges and legislators – must reflect the people in the communities they serve.

This book is based on Hamalengwa’s own experience, backed up by impressively extensive research.

Two sentences in the book expose the reality that the legal system is not intended to produce justice, except by accident, and then largely to the benefit of the agents of the system and to rich and powerful users of the system. It is an injustice system for the victims of white supremacy (racism). The sentences are: “The powerful speak as often as they want. The powerless listen as best as they can”; [resulting in] “perversion of democracy; not perfection”.

This is not a book with ideas in the clouds. It is worth reading to learn real-life examples. Hamalengwa describes instances of racial profiling by police. Research demonstrates the clear link between racial profiling – an unlawful practice – and disproportionately high rates of conviction and severity of sentencing of Black, Brown and Aboriginal people. The Commission on Systemic Racism in the Ontario Criminal Justice System reported on that link in its excellent report in1996.

He tells the disgraceful story of the experience of Corinne Sparks, a Black judge in Nova Scotia. Judge Sparks used her experience as a Black person to comment on racial profiling by police. The White agents of the status quo were so incensed by her comments that they said she was biased and appealed her decision all the way to the Supreme Court of Canada. Fortunately, the Supreme Court upheld Judge Sparks’ decision and commented that judges SHOULD use their knowledge of the community to help them arrive at their decisions.

Despite the Supreme Court’s declaration that justice is more likely to result when there is real diversity among judges, Hamalengwa demonstrates through other concrete examples that the Supreme Court, itself is not diverse and efforts must be made to achieve a transformation so that the highest court in the land is much more diverse.

Hamalengwa’s particular interest is in ensuring that judges are truly diverse in their life experiences. On the basis of his experience and research, he asserts that judicial objectivity and impartiality are myths; they do not exist in the real world. Therefore, judges must reflect the communities they serve. In Canada, that means that judges must not only be White Jewish and Christian men and, increasingly, women. They must be Aboriginal, Black and members of other racialised groups and religious groups. And agnostics and atheists.

Hamalengwa has done his part as an individual lawyer to attempt to make change. He has spoken on the issue. He has written letters to Prime Ministers about the need to consider a broader pool of potential appointees to the bench. He, however, asserts that the social transformation he advocates requires a number of differing strategies before the change will occur. I would add that there must not only be a variety of strategies; they must also be simultaneous and sustained. Hamalengwa is aware that making this change is a daunting task. I am encouraged, however, by the optimism that must drive his continuing passion to both be the change he seeks and to encourage others to make the change.

Based on my own research and experience as an anti-racism organizational change agent, people outside the legal system have a role to play in the change. Respected journalists in mainstream media can publish embarrassing stories about the lack of diversity among judges and what that means for the average person, not just criminals. Community activists can use social media to publish stories that demonstrate the huge gap between Canada’s reputation as a truly multicultural society and the real Canadian story. Faith leaders can use their pulpits to talk about the moral imperative for justice in the justice system.

This book is, unfortunately, often not an easy read. It often uses legal jargon, not easy to understand by the ordinary reader. It could have done with better proofreading; names are often incorrectly spelled, for example. I mention these apparently small criticisms because the errors detract from an otherwise impressive piece of work that should be a required text in law schools throughout the world as well as required reading for judges and those responsible for appointing them.

Nonetheless, it is worth making the effort to read this book. If enough people take up the challenge to transform the legal system to a justice system, Canada will be better for it. Canada owes thanks to Mr. Hamalengwa for continuing to try to make us live up to the reputation we have for justice; a reputation we are still a long way from deserving, particularly for Aboriginal people and women and men of colour.

Critical notes on the legal system of Zambia

Munyonzwe Hamalengwa and Charles Mwewa | September 18, 2014
Pambazuka News
The whole Zambian legal system needs to be revamped. Still deeply rooted in its colonial origins, the system has stifled creativity and stunted the possible independent growth of the country’s legal institutions, law making, judicial decisions and legal scholarship.

1. Zambia was founded as a company state in 1889. It still is a company state, based on copper rents. These copper rents have historically determined the fortunes and misfortunes of the State. Zambia’s externally induced incorporation into the expanding world capitalist system still largely entails the external determination of Zambia’s political economy.

2. Just like in economics, Zambia’s legal system is still tainted by colonial attitudes. It also still bears the birthmarks of its origins – its duality. Right at the inception of colonial company rule, duality in the legal system was introduced: “In the administration of justice to the said peoples or inhabitants, careful regard shall always be had to the customs and laws of the class or tribe or nation to which the parties respectively belong, especially with regard to the holding, possession, transfer and disposition of lands and goods, and testate or intestate succession thereto, and marriages, divorces, legitimacy and other rights of property and personal rights, but subject to any British laws which may be in force in any of the territories aforesaid and applicable to the peoples or inhabitants thereof.” The legacy of this seemingly benevolent but in fact, highly disruptive, colonial legal imposition has been to prevent and disorientate the development of a unified legal system, which is so central to progressive political and economic development.

After fifty years of self-rule, Zambia has not made expected progress in terms of its economic development, mainly due to a legal system that has stifled free thinking and freedom of enterprise. To augment democratic manumission, we recommend the following:

3. The Colonial origins and still prevailing colonial attitudes have stifled creativity and have stunted the possible independent growth of the Zambian legal system which comprise of legal institutions, law making, judicial decisions, legal scholarship and so on.

4. Most crucial judicial decisions, especially those that affect political liberties, still follow the colonial precedents. This means that the political liberties of Zambian citizens are largely still determined by the judicial rulings of the colonial era when the laws were immediatedly in the service of the colonial state. We refer for example to the land mark political cases of Re Kapwepwe and Kaenga (1972); Nkumbula v. Attorney General (1972); Re Puta (1973, 1981, 1982); Shamwana v. Attorney General (1980, 1981) and others, all reproduced in M. Ndulo and K. Turner, Civil Liberties Cases in Zambia, (Oxford, 1984) where colonial precedents and colonial laws were used to determine the outcome of the cases.

5. Take also the example of emergency powers which were permanent in the Zambian legal system and which had been used to detain many individuals without trial from 1964 to 1991. They had colonial origins and were brought into existence to deal with the then nationalists, who are presently the wielders of state power in Zambia. These same leaders who were detained without trial during the colonial days and who vehemently denounced those laws were now using the same laws to deal with the perceived political opponents. Sometimes even common criminals were detained using these same laws. To some extent, these laws had become more draconian during the independence era. The example of the Public Order Act which continues to bedevil the Zambian legal and political system is a colonial creation. This Act curtails freedom of association, freedom of speech and freedom of assembly and thought.

6. It can be stated that the existence of colonial laws at independence induced or created an atmosphere of laziness in those who took over the reins of state power. Things were already there, why bother to innovate, why spend money which could be used on private accumulation?

7. What happened however was almost inevitable. At independence in 1964, there were only one or two Zambian trained lawyers and they were educated in England. Thus, there were absolutely no indigenous legal resources (trained legal personnel) to think of overhauling the legal institutions. What were in abundance were colonial legal personnel and colonial legal literature. There was no university in Zambia. There was no law school.

8. It is thus not surprising that for several years after independence, the judges, lawyers and law teachers were colonial judges, lawyers and teachers. This meant that colonial legal philosophies inevitably continued their sway in independent Zambia. This explains why it has been difficult to root out colonial legal attitudes. Further, indigenous lawyers continued to be trained in England, thus continuing the colonially inspired legal attitudes.

9. This largely explains why there is still a scarcity of indigenous legal literature in Zambia. There are very few books to date on the Zambian legal system or some aspect of it written by an indigenous Zambian. The few authentic books on the Zambian legal system are either collections of articles, some of which were written by foreigners or collection of judicial decisions, some of which contain heavy doses of colonial precedents and attitudes. We refer to M. Ndulo and K. Turner, Civil Liberties Cases in Zambia and M. Ndulo (ed.) Law in Zambia (Nairobi: East African Publishing House, 1984). This attests to the poverty of Zambian legal scholarship.

10. The Zambia Law Journal has tried to rectify the situation. Unfortunately, it has not normally appeared with as much frequency and consistency as we would have loved it to. By now there should be dozens of law journals or legal publications in Zambia. In any case, a good number of issues of the Zambia Law Journal have published articles by the same authors. This may mean in the long run the domination of Zambian legal scholarship by a few individuals. This however is preferable to the domination of the Zambian legal scholarship by colonial attitudes.

11. The Zambian constitution of 1964, a colonial creation, remained until 1972 – 8 years later. It was only changed in reaction to political threats posed against the ruling class. The change was very minimal and only to entrench more securely the power of the ruling class. This clearly shows that change comes very slowly and only when there is a threat to the prevailing status quo. And the change is not usually or necessarily for the better or to serve the interests of the majority.

12. Given the above observation, how then can the Zambian legal system be overhauled to reflect the changing political, economic and social-cultural realities in Zambia since independence? This entails first demarcating the observable changes in the political, economic and social-cultural realities. How deep rooted are these changes?

13. If the dynamics of the Zambian political economy are still externally induced, entailing the same attachments to the global capitalist world economy, hence very minimal changes from the colonial political economy, how could we expect any dramatic changes in the legal system? How much autonomy does the legal system enjoy within the political economy? Can you have dramatic changes in one without affecting the other?

14. Politically, Zambia has an authentic indigenous ruling class which took over the reins of power at the demise of colonial rule. This ruling class has increasingly been entrenching itself using state power. It exercises taxing power; formulates the budget; decides to a large extent foreign policy agenda; deploys police and military power within the country; decides investment policy; controls huge economic resources; formulates laws and so on. These changes are not inconsequential. With these powers at their disposal, it is conceivable that the ruling class can change the legal system if it so wishes. It has in fact so done from time to time. Thus, those aspects of the legal system that it has changed and those that it has not changed from the colonial days can be regarded as in its best interests. Thus the prevailing legal system in Zambia is in the best interests of the ruling class in Zambia. Such include the powers of the Nolle Prosequi and the Public Order Act for example or the powers to initiate constitutional reforms only to abandon them when they clash with vested interests.

15. Economically, despite the entrenched hold of international corporate capital on the economic levers of the political economy of Zambia, the Zambian ruling class through a series of reforms has been able to wrestle some control of the economy for itself. There is now, without doubt, an entrenched indigenous Zambian ruling class, both in the political and economic sense. This does not however mean that international capital is no longer dominant. It still is. The Zambian ruling class is still subordinated to the exigencies of international capital. But it is not totally helpless. It exercises tremendous economic and political power internally. It is much more appropriate to regard the Zambian political economy as based on the triple alliance of international capital, the state and local capital. This alliance (which gets disturbed periodically) is a factor in the cohesion of the Zambian political economy. Given the fact that during the colonial era, the economy was geared to serving the interests of the colonial state and the metropolitan bourgeoisie, the entry of the Zambian ruling class has meant some significant changes in the control and utilization of the economy. These changes also entail the capacity of the ruling class to change the laws to reflect its own interests.

16. Socio-culturally there have also been some significant changes. There is now a University of Zambia with a law faculty. There is the Open University with a Law School. There are so many universities in Zambia now. There are as well so many colleges than during the colonial era. Some of these universities and colleges are private. The University and the law schools have produced hundreds of graduates who are now working in various capacities. Other institutions of learning have also similarly produced hundreds of graduates. The Zambian judiciary is now staffed a hundred percent by indigenous Zambians. These changes must also entail changes in the legal system of Zambia. What then must be the changes?

17. The desired changes are numerous and the Zambian ruling class is aware of the necessary changes that need to be made. They are also aware of the role of the law in society. For example, President Kaunda has articulated the problem thus, “I consider law to be perhaps the most important of all instruments of social order because without it, the whole structure of society can but inevitably collapse… It is the means by which order within society is maintained and society itself preserved. The law… is not something independent of the society it regulates and purports to preserve… it would be presumptuous for anyone to criticise the concepts and rules of some other society without the deepest knowledge and understanding of the history, traditions and present day character of that society… law of any society must inevitably reflect the character and needs of that society… Neither the character nor the needs of any given society can remain static, and if the law is to fulfil its proper function, it must keep pace with the changes… if law is to be an effective instrument of social order it must be a stabilising influence, but it must be flexible and it must be progressive, else it will hinder society in its progress and development instead of advancing it…” He then referred to the role of lawyers in working “out solutions to the social and economic problems of society” and in altering the [(received or imposed colonial)] law “… to the needs of the type of society Zambia aspires to be. The Lawyer,” he added, “is better fitted than anyone else to work out solutions to the social and economic problems of society… He must understand the society if he is to be able to participate in the development and advancement of the economic and social well-being of its members… The developing countries – and Zambia is no exception – have a tremendous need for increasing the number of lawyers…”. However, it is axiomatic to say that law in Zambia has been largely used to maintain “social order” rather than promote progressive change or reflect the changing social needs of the majority.

18. The Law School’s initial objectives have not been fulfilled. They were 1) to join in the building and development of the legal system in Zambia, and generally to make available the resources of the school, in staff and students, for the welfare of the [Zambian] community; and 2) to produce lawyers in Zambia… better fitted to meet the needs of developing countries like Zambia.

19. The Zambian legal system should be changed to address the above objectives. It should be used to address the needs of the poorest segments of the Zambian community, for example: provision of basic legal education and other services in the rural areas; provision of free legal services to the urban and rural poor; to gear the law to be used to demand the provision of basic necessities of life for the poor, e.g. housing, food and clean water.

20. The law must be overhauled from its reliance on colonial and past precedents. It must be creative to reflect the changing needs and social realities in Zambia. As one scholar has observed, “the courts should explicitly recognize that they are never irrevocably bound by any past cases, Zambian or foreign, except that lower courts must remain bound by decisions of higher ones… the courts should be more willing to deviate from precedent than they are at present. If past cases do not seem suitable today, in Zambia, the courts should not follow them… all precedent must be analyzed in terms of its usefulness to the problems at hand, whether or not that precedent is ultimately followed… recourse to precedent should however, not be axiomatic as it so often is now…” This should engender critical legal developments in Zambia.

21. Legal education in Zambia must be geared toward the production of development lawyers. These are lawyers who are critically aware of the abject poverty of the majority of the citizenry, the warped nature of the present legal system in the interest of the ruling class and the need to develop a legal system that promotes social development as well as social justice. Other professionals must also be conversant with the limitations as well as possibilities of law so that they can influence the development of a progressive legal system. This has been aptly pointed out by the International Centre for Law in Development which we here quote at length:

‘… if development is seen as a self-conscious effort to transform society, law has a multiple relationship to this process. Law may be seen as an instrument by which man in society consciously tries to change environment… some may also see law as a value, or a process so fundamental to the realization of certain values… development of effective legal institutions and processes can contribute to strengthening of (these values) … legal studies may… be essential to any comprehensive study of state, society, and economy in developing societies… modern states employ statutory and other forms of law as part of an effort to reach the goals they define as ‘a development’… law and legal processes of individual nations must frequently be changed — often in drastic ways, if the social, economic, cultural and political goals contained within the idea of development are to be attained… Research must be sensitive to all these dimensions of or perspectives on law and development… the current body of development knowledge and doctrine is relatively insensitive to law and legal institutions… In ignoring law, developmental studies have overlooked a major dimension of the very process they are charged with examining. In failing systematically to examine the possibilities and limits of law as a tool of planned social change, developmental researchers have shown a surprising lack of interest in the nature of the tools that policy makers daily employ to reach development goals… In failing to develop any systematic knowledge about the relationship between law and contemporary process of development, scholars have lost an opportunity to develop more complete and general knowledge about law, thus denying the legal scholarship the fullest possible understanding of the legal process… the development researchers have failed to understand the potential contribution that legal studies might make to a better understanding of development, and legal scholars have been insufficiently aware of the contribution that law and development research could make to legal studies.’

22. Some of the reforms we propose have already been proposed by others but we list them here for emphasis: the wholesale use of the powers of Nolle Prosequi must be reconsidered as it has become a political tool and has been abused; the Public Order Act must be annulled as it is anti-democratic and has been used for repressive purposes; those who are appointed to hold positions in the service of justice must declare their assets before ratification in order to curtail corruption.

23. We propose the institution of a Constitutional Court where citizens can bring constitutional challenges directly to that court without passing through various judicial hierarchies. The Judges of this court must be of highest intellectual calibre or judicial experience, or academic experience or educational experience or international legal or other experience or must have extensive publications or a combination thereof.

24. We propose that Judges must be able to serve up to the age of 75 to 80 years, in keeping with the experiences of other countries like the United States, Britain and Canada.

25. Lastly but not the least, we propose the institution of the Jury System in Zambia. As this is a very fundamental and new topic that has not been raised before, we accompany this submission with a paper on the jury system that was written for another purpose, [need for judicial diversity leading to judicial transformation] as background to this proposal. The above submissions are however, self-contained and no reference need be made to the Jury paper accompanying this submission. Only if one is interested in the proposal of a Jury system in Zambia should the accompanying paper on the Jury system be read.

26. The whole Zambian legal system needs to be revamped. The introduction of a Jury System will be a magnanimous addition which will help in reshaping Zambia as a true democratic society. The Jury should be one of the central pillars of the criminal justice system. Jurors and not so much Judges would do a duty by preserving democracy in Zambia.

27. We are aware of the shortcomings of the Jury System, for example in poor countries, jurors can easily be bribed and corrupted just like some judges are. Despite this reality, a Jury System is an advance over the current system just like corruption after independence did not mean that colonialism was preferable. There was massive corruption under colonialism but whatever corruption goes on under independence, preferable significant political and economic development has taken place. Much more fundamental improvements can be made.

28. The recent revelations and acknowledgments by the Chief Justice of Zambia Madam Lombe Chibesakunda that there is some corruption in the judiciary is a good starting point to address what can be done.

29. The introduction of the Jury System would be one of the ways to curb corruption within the judiciary.

30. Any introduction of the Jury System in Zambia would be preceded by careful study and implementation of a pilot project. A Jury school could be established to study and teach the importance of this bedrock of democracy that colonial powers were so afraid in introducing in colonial countries.

DOWNLOAD THE COMLPETE ANALYSIS CRITICAL NOTES ON THE LEGAL SYSTEM OF ZAMBIA

* Munyonzwe Hamalengwa is a lawyer, writer, book reviewer, lecturer and author.
* Charles Mwewa is a Professor of Legal Studies at CDI College in Toronto, Canada and a prolific author.

Tribalism should be dead by now in Zambia

Dr. Munyonzwe Hamalengwa | January 15, 2015
ZAMBIAN Eye

By Munyonzwe Hamalengwa, PhD

It was a historic election. The planets had aligned to allow centuries old practices of racism to pave way for the election of a Black man. Racism is more entrenched in the USA than tribalism is in Zambia. If the Americans for one brief historic moment could forget racism and vote for the best candidates, Barack Obama, based on issues, Zambians can overcome tribalism in this election and vote for the best candidate across the country. Is the best candidate Hon. Lungu, Mr. Hichilema, Ms. Nawakwi, General Miyanda or any of the others?

Tribalism should have been dead by now in Zambia. This is Fifty years after independence. The melting pot started when colonialism gathered all the tribes in one territory under one roof so to speak. Secondly the colonialists brought all tribes to work in the mines and farms and other urban centres. On the mines, a house next to a Bemba man belonged to a Tonga man, the next one saw a Lozi man sharing accommodation with a Ngoni man and so on. These people went deep into the belly of the earth together. They shared lunches and dinners together. During the weekends, they drank in pubs together, visited each other and started learning each other’s languages.

In those early days, it was taboo to marry across tribes. The Grand Canyon of prohibition of marrying across tribes would collapse generations later in the eighties and beyond. There is perhaps no person now who does not know a relative or someone who is married to a person from another tribe or race. My uncle married a Mulumbu(foreigner) from Eastern Province in 1975. My older brother married a Namwanga woman in the mid-eighties. Every body knows someone with a Tonga first name and a Bemba or Lozi last name or vice versa, and this applies to all tribes in Zambia. Why should tribalism persist with this kind of mixture? Do we know that when we practise tribalism, we hurt our own relatives who belong to multi heritages? We hurt our own children and their friends. We hurt Zambia and future generations.

Even before the explosion of intermarriages, there was a period of selfless and patriotic nationalism when Mr. Mbikusita Lewanika formed the Northern Rhodesia African National Congress which was an umbrella political organization of all tribes that fought colonial oppression. Before that there were African Welfare associations that acted as nascent political parties against colonialism and they had no regard for tribalism. Mine workers and other workers formed unions without regard to tribalism. Any strong person could be president.

Lewanika was succeeded by Harry Mwanga Nkumbula and whose Secretary General was a dynamic young man Kenneth Kaunda. They belonged to different tribes. When they split, they split not because of tribe but because of issues. Mainza Chona created the United National Independence Party but ceded power to Kaunda when Kaunda came out of jail. These two belonged to different tribes.

Munali secondary school was the United Nations of all tribes and this  was the training ground for the first generation politicians of Zambia. That composition produced almost a tribal-less cadre of Zambian politician, perhaps the best graduates Zambia will ever see if we compare them to the modern politicians who are mired in tribal idiocy that should have melted long ago given that they went through many cycles of purification. That purification  should have weeded away tribalism by now than what the first generation went through. The first generation came straight from Kumunzi (village) and only initially knew and spoke their languages. Many current politicians were born in urban areas which should have been detribalized by now. They grew up going to school with kids from other tribes, they dated girls and boys from other tribes. They began to speak other languages even before they graduated from high school. First generation leaders never had a university which constituted a congress of all tribes when it started in 1966. Lungu, Hichilema, Mwimbu, Mweetwa, Sampa, Scott, Chipimo, etc etc etc went to university.  Why should any of these people be peddling tribalism or racism in the second decade of the twenty first century? Look at Kaunda’s first cabinet! How did we founder from that perfect reflection of a tribal-less and almost paradisic existence?

Racism, tribalism and other isms are activated for political ends and other inhuman purposes. Knowing the destructive nature of these isms, should people of good will allow these vices to be openly propagated? Who benefits from tribalism? Who suffers from the scourge of tribalism? What kind of leaders emerge through the chimney of tribalism? Are these pure leaders or smoke-stained creatures who are up to no good?

Tribalism is a danger to the public. It has caused genocide in Rwanda and Biafra. It has led to deaths or injuries to countless millions all over the world including Zambia. This is the atrocity all Zambians must fight against.

I think of my generation who went to Canisius Secondary School. Wezi Kaunda, Kaunda’s son was ahead. Grey Zulu’s son was ahead of me. In my cohort was Mwansa Kapwepwe, Ignatious Milner and the Wina nephews. There was Fines Bulawayo. Behind me were Mubanga Mwanakatwe, Valentine Musakanya. My house Captain was Emmanuel Mutati. School captain was George Tembo. My dorm captain was Luke Chikwama. My best friend at some point was Brown Lungu. I took a lot of students from all tribes to the surrounding villages to sample gaankata (local brew). Canisius Secondsry School is in deep Tonga country. Many non-Tongas learnt Tonga while at Canisius.  Canisius and most secondary schools in Zambia continued to be melting pots dissolving tribal differentiations into nothingness, so it appeared.

The United Nations of all tribes continued to gather at the University of Zambia.  My best friends at UNZA included Derrick Chitala (as he then was called), Vincent Musakanya, Derrick Mulenga, Samuel Miyanda, Sipula Kabanje, Sibanze Simuchoba, Fanwell Makungu, Mulenga Ng’andu, Gulam Patel, Gilbert Mubita, Tentani Mwanza, Philip Chilomo, in other words students from all tribes and different years at UNZA. UNZA should have eradicated all vestiges of tribalism. At national service at Solwezi Military Camp, I slept in trenches with people from different tribes. With all these intertwined experiences, how could people still be slaves to tribalism and be blinded by it? Is One Zambia One Nation a hollow distant dream? Can it be reclaimed?

Tribalism has no redeeming qualities. It is a destructive force. It is used for base selfish purposes. It is grand corruption. Hate propaganda is a criminal offence in some countries. Tribalism in Zambia must be criminalized

TO BE CONTINUED.

Dr. Hamalengwa is the author of 1.Class Struggles in Zambia, 1889-1989 and the Fall of Kenneth Kaunda, 1989-1991 and 2.Thoughts Are Free: Prison Experience and  Reflections on Law and Politics in General.

The Politics of Law in Zambia

Dr. Munyonzwe Hamalengwa | February 15, 2015
ZAMBIAN Eye

Zambia ought to do things better and through the rule of law. Kenneth Kaunda was leader for 27 years and when he lost power he was all of a sudden, not a Zambian and subjected to arrest and humiliation by the new government, whose leader Frederick Chiluba in turn got humiliated after he left power.

Levy Mwanawasa died in office as did Michael Sata so they were not humiliated though I suspect Sata would have been indicted by any future party that would have replaced the PF based on the pattern started by Chiluba and amplified by Mwanawasa. Mwanawasa could have been harassed by Sata given what he did to Sata.

Rupiah Banda was indicted after leaving power just as Chiluba was. Sata started arresting most opposition leaders using the Public Order Act which was in much use under KK. Pursuing your enemies through the manipulation of law is now the order of the day. Fred M’membe and Mutembo Nchito are but the latest casualties. But these have the means to fight, how about the poor and the less connected amongst us?

The M’membe and Nchinto cases will pose very serious problems for the political leaders and the judiciary both of which are in transition and their footings are not yet firmly planted. Lungu is new as is Mambilima. The former is facing an election around the corner, the latter is facing ratification. Both may want to play the highest political brinkmanship but then again they may not.

The year 2006 is the fifth anniversary of the untimely death of Mainza Chona, the veteran Zambian politician and lawyer.

The year 2006 is the fifth anniversary of the untimely death of Mainza Chona, the veteran Zambian politician and lawyer. To honour his legacy and keep his memory alive, his family and friends have decided to construct a “living” website for that purpose.

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Mainza Chona (1930 to 2001) is truly one of the unheralded heroes of Zambia. He neither courted publicity nor exalted status within the Zambian political establishment. Although Mainza Chona liked to present himself as a simple and humble villager from Nampeyo in Chief Chona country east of Monze in the Southern Province of Zambia, Chona was a tough, highly sophisticated and urbane lawyer and political operative If he did not kill you with his smile, appearance of simplicity and humour, he killed you with powerful arguments uttered amidst joyous laughters.

John Mwanakatwe in his autobiography entitled, ‘Teacher Politician Lawyer: My Autobiography” (2003) writes that Mainza Chona “was a patriot per excellence…he was extremely popular with party officials because of his sense of humour”. Humble he was, simple, he was not. You just have to take into consideration how long he lasted in politics and the various political positions he occupied from 1964 to 1991 in Zambia. According to one authority, Mainza Chona occupied more and varied political positions in Zambia than just about everybody else.

Chona was the first President of United National Independence Party (UNIP) which became the ruling party at Zambia’s independence in 1964. In his own humble way, he ceded the position to Kenneth Kaunda when Kaunda was released from detention. He could have fought to retain the position but he did not. Chona’s loyalty to Kaunda, UNIP and Zambia remained constant throughout his political career. Despite the occasional frictions within Zambian politics and between President Kenneth Kaunda and Mainza Chona and others, Chona’s loyalty to Kaunda, UNIP and Zambia and not necessarily in that order could never be doubted.

I witnessed Chona’s loyalty to Zambia at first hand. One time in 1982, Mainza Chona came to Washington, DC. I was living in Washington DC at the time. He asked me to escort him to the airport on his way back to Zambia. We waited for the Zambian Embassy to send a limo to take Mainza Chona to the Washington International Airport (now Reagan International). We waited for a long time for the limo to come. Time was running short. I pleaded with Chona to just take one of the numerous taxis that were around otherwise he would miss his plane. He insisted on waiting for the limo. I thought he was living the trappings of power. Eventually the limo came and he smiled and told me, “I knew they would come through”. But I chided him by stating that he would have missed his plane just waiting for a limo, which may never have come, when a taxi could have done. His explanation for his behaviour was simple but overpowering: “I did not want to embarrass the Zambian Ambassador and therefore the Zambian Government by leaving for the airport on the assumption that they were unreliable by not sending the limo”. It was Mainza Chona quite alright, always placing others above his own interests, always making others look good. He did this without rancour, year in year out throughout his political life.

Mainza Chona died without having accumulated vast amounts of wealth like some of his contemporaries did. In this sense, the first generation Zambian politicians were much ahead in terms of moral suasion than the contemporary crop of politicians whose raison d’etre seems to be the accumulation of wealth at the expense of ordinary citizens and the country as a whole. Anyone who expected to discover a pot of gold at the death of Mainza Chona was solely disappointed. There was none. I remember visiting him at his small house in Lusaka in 1992: compared to the houses of his contemporaries, Mainza Chona may as well have been living in the village. When you went to his village, you did not find an imposing mansion or mansions as you would fin d in the villages of quite a number of his contemporaries. The contemporary politicians have mansions that resemble universities or hotels or similar structures. But what you found at his village was a simple clinic for the benefit of the villagers and not for his benefit. The road to his village and the clinic is not even paved. This is a man who was once the Prime Minister of Zambia, Minister of Home Affairs, Minister of Justice, Secretary General etc. etc.

Yet Mainza Chona had an opportunity to amass as much wealth as he wanted. He was the first Zambian to be qualified as a lawyer. He qualified at Grays Inn in London during the fifties. Instead of just studying and returning home to open up a law practice (restricted though it was) and make some money, he joined the political process and he never looked back. After independence he held so many positions which he could have used like others to accumulate private wealth but he did not. No one can ever point to any corruptive practices on the part of Chona throughout his political life. This speaks volumes compared to what has been written or said about his contemporaries and especially what has happened in relation to the new crop of Zambian politicians.

Mainza Chona paid dearly for his political dedication to Zambia, like a lot of the first generation politicians. Simon Zukas reports in his excellent autobiographical book of his life and Zambian politics entitled, “Into Exile and Back” (2002) that Mainza Chona established the London Office of UNIP while he was in the UK to avoid arrest in Northern Rhodesia on a charge of sedition”. So we had Zambian refugees like Mainza Chona well before independence. The sacrifice here is that, Mainza Chona could have been prevented from practicing law precisely because of this criminal charge of sedition. A lawyer should have no criminal conviction against him at all. You cannot run from the long arm of the law. Mainza Chona was eventually charged with and convicted of sedition in a case reported as: R. V. CHONA (High Court of Northern Rhodesia, 1962). This case is reproduced in here as well as in the book entitled,” A case Book on Criminal Law” compiled by John Hatchard and Muna Ndulo (1983) at pages 306 to310. at the outset of this ironical decision, we are told that Chona was charged with sedition for publishing” a document describing the evils of colonial rule” while in his capacity as National Secretary of UNIP. The colonialists did not want the evils of colonialism to be described. Would that not be laughable today? In those days, it was no laughing matter. I am sorry I never talked to Mainza Chona about that charge and conviction. But brushes with the law then were regarded as a badge of honour and I am sure Mainza Chona wore it with pride.

The pinnacle of Chona’s political career is perhaps his Chairmanship of the Commission of Inquiry into the Establishment of a One Party State. He made a lot of recommendations which could have democratised Zambia but some of the most significant recommendations towards that goal were not accepted by the government. The website contains more information on this.

After he left politics, Chona went into full-blown legal practice, the first time he really practised lawyer since he qualificationas a lawyer in England in the mid-fifties. He defended such luminaries as former president Kenneth kaunda when the ne government of Frederick Chiluba attempted to take away the Zambian citizenship from Kaunda. Kaunda lost power in 1991 after having ruled Zambia since 1964.  Most of the cases Chona did were either pro-bono or paid very little because the people could not afford to pay the high fees befitting his stature as State Counsel, the equivalent of Queen’s Counsel in some jurisdictions.  The website is there to provide more information on Mainza Chona’s legal career among others.

Mainza Chona would not be proud that a website has been designed to honour his legacy. He was a private man who did not want publicity centered on himself. But it is the only thing his family to whom he was undividedly devoted to after his politics can do to honour the memory and legacy of this quiet and unheralded Giant in Zambian politics.

This website is a feast for the eyes, ears and mind. It is divided into several sections and like any website can be read according to one’s interests. It is hoped that a full blown account of Mainza Chona’s life will be published some day in the future. Given the dearth of good autobiographies and biographies of Zambian politicians, especially the first generation politicians, this website and a full blown biography later are significant contributions to our understanding of our political past and the genesis of the future of Zambia.

Any information that anyone wants to share regarding Mainza Chona can be emailed to admin@mainzachona.com. Because of his humbleness, Mainza Chona ought to be nursed as a continuing living tree. Contribute to that goal.

Munyonzwe Hamalengwa
Barrister and Solicitor

Ireen Mambilima as Chief Justice: Justice must not only be done ,it must also be seen to be done

Dr. Munyonzwe Hamalengwa | February 9, 2015
Lusaka Times

By Dr. Munyonzwe Hamalengwa

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Some countries have stopped appointing sitting judges to hot-potato political positions because of the fear of the violation of a centuries-old truism which simply reposes majestically: “Justice must not only be done, it must also be seen to be done.” These democratic countries instead appoint retired judges or other retired personalities of apparent integrity to handle high stakes political positions. After they have handled these volatile political missions, these personalities are never given judicial or other political positions where they stand the chance of being accused being biased towards the appointing authority.

It does not matter whether the accusations hold water or these individuals have pure hearts as the Virgin Mary or similarly angelic entities, the adage of “Justice must not only be done, but it must also be seen to be done” imports the important reality of perception. Perception is as real as reality and perception of corruption is as corrosive to the body politic as real corruption itself. It engenders mistrust, misconduct and actual corruption. People act both on the reality they experience and that which they perceive.

The repositioning by President Lungu at this early stage in his presidency of Chief Justice Irene Mambilima from her high voltage position as Chairperson of the Electoral Commission of Zambia (ECZ) where she was wrongly or rightly accused of bias towards the governing party, so far without evidence of any wrong doing, to the highest and most potent of legal and political positions of Chief Justice of Zambia in one breath, raises the spectre of the essence of the old adage.

What if she was promised the coveted position predicated on her swinging the election results one way or the other?

There are one or two concerns for that. First, and this hinges on the appointing authority himself, it is the nature of the just-ended presidential by-election in Zambia. The January 20th, 2015 election was the most closely contested election ever held in the history of Zambia – 807,925 votes for President Edgar Lungu of PF and 780,168 votes for Hakainde Hichilema of the UPND. With the difference of just over 27,000 votes, the election results would have gone either way. It raises the issue of legitimacy after the fact. If the disparity was gigantic, perhaps, the issue would be minimized. The urgency under which the president appointed the Chief Justice (subject to ratification by Parliament), who was the determining factor and guardian of the just over 27,000 votes which determined who the president would be, may nurture forbidden inferences. Some may wonder: What if she was promised the coveted position predicated on her swinging the election results one way or the other? Or, what if the appointment is expediently engineered in order to prevent would be petitioners from making head ways on this issue? These, of course, are only speculations, but in the framework of legal correctness, they raise fundamental questions germane to the discussions of corruption in Zambia.

Second, it is the issue of Chief Justice Mambilima being perceived to be impartial in future presidential elections should the results be judicially challenged, for example. This is a serious thinking person’s food for thought in a democracy. This thinking isn’t for the faint of heart. This thinking isn’t amenable to reflexive knee -jerk reaction. Insults don’t answer questions.

The ghosts of this most powerful phrase (“Justice must not only be done, it must also be seen to be done”) in the annals of justice could lie dormant for years and generations, but it’s spirit could rise again and again and again. The reign of the former Acting Chief Justice Lombe Chibesakunda was partly marked by controversy because of this very perception that something was wrong or untoward in her appointment even though she herself may have been upright. The controversy was fuelled by some perceptions. Perceptions are real. The Law Association of Zambia (LAZ) went to court to challenge her continued stay, albeit, she had reached retirement age. It is ironic that the same LAZ has now applauded President Lungu’s appointment of Justice Mambilima as Chief Justice given the history.

Would the Judiciary of which she was the head actually be able to remove her? This is in reference to the unforeseeable (but probable) position that these elections (or similar-situated ones) were challenged in court and she was called upon to make judgment. There will be developed bad blood within the legal and judiciary system in Zambia. President Sata had really lobbed Machiavelli in the spokes of the justice quotient of Zambia whose ill effects may echo for generations. The Zambian judiciary is perceived rightly or wrongly as corrupt and the Chief Justiceship tenure of Madam Lombe Chibesakunda did not help, particularly because of the manner in which it was politically maintained. Some perceived the judicial results of some by-elections as payback time in the politics of political survival. Some of the consequences and legal and political implications of Chief Justice Chibesakunda’s tenure will not be known for generations, but surface they will.

Thus, it was not surprising that much jubilation was accorded Chief Justice Mambilima’s appointment because of the hiccups generated by Chief Justice Chibesakunda’s tenure. We knew Chief Justice Chibesakunda. We know Chief Justice Mambilima. Both are impeccable and moral ladies as individual human beings. The old adage, however, goes the extra distance. It probes into the perception of the people out there.

Again, how will Chief Justice Mambilima acquit herself after the next election, if the presidential results are challenged and she remains Chief Justice? How will some of the players perceive her? Again, it is not only the reality that counts here, it is also the perception. Will some people who will lose, not recast their suspicions to her appointment as Chief Justice so soon in fact after President Lungu had won the presidency and she was the chief at ECZ which ratified the narrow electoral victory of the appointing authority? And then think of the soon-coming 2016 presidential elections, would it not reasonably be foreseen that the PF are setting a stage for a win (whether it will be clear-cut or controversial)?

Admittedly, Chief Justice Mambilima was the substantive Deputy Chief Justice before President Sata played his legal gymnastics. Surely as reigning Deputy Chief Justice she deserves the position, but the context and timing of this appointment is injurious to the norms of fundamental justice, especially in reference to a much closed election under which the just appointed Chief Justice presided as chief election monitor! The full implications of this appointment may echo into the future for generations.

In most democratic countries that take the adage seriously, they would not have appointed a sitting judge to head the Electoral Commission and then immediately after winning an election, appoint this judge to be the Chief Justice of the country. But then again, paraphrasing Frank Sinatra’s famous song, Zambia has always done it its own way. 2016 is around the corner and then we will know whether Zambia’s ways of doing things have been the right ways. January 2015 to September 2016 promises Zambians the greatest political rides of their lives.

Co-authored by: Charles Mwewa and Dr. Munyonzwe Hamalengwa

Charles Mwewa is the author of Zambia: Struggles of My People and the two volume study of President Michael Sata entitled, King Cobra Has Struck and Allergic to Corruption. His latest book is Legal Aspects of Landlord and Tenant Law in Canada.

Dr. Munyonzwe Hamalengwa is the author of Class Struggles in Zambia and the Fall of Kenneth Kaunda as well as Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General. His latest book is The Politics of Judicial Diversity.

Taxation and organized state criminality: The case of Zambia

Clement Malambo | September 18, 2014
Pambazuka News

By Dr. Munyonzwe Hamalengwa

The serious allegations of tax fraud made against the publisher of a Zambian newspaper implicate a number of top ranking government officials and institutions, starting with President Michael Sata. These too should be held to account if there is full commitment to fighting corruption in Zambia

Fred M’membe, the publisher of The Post newspaper of Zambia, is accused of having committed the crime of willfully and deliberately not meeting tax liabilities since 2011, when the Patriotic Front (PF) government came to power in Zambia. The tax liability has been reported by the newspapers as of 1 September 2014 to be K8 billion (rebased currency).

This editorial argues that if what is reported by Mr Julius Komaki, a PF official, and echoed by the Daily Nation; Zambia Reports; ZambiaWatchDog; Ms Pamela Chisanga, director of ActionAid Zambia; and former Ambassador Joe Mwale is true, then Zambia is an organized criminal state. The accusations put forth, if found to be true, would mean that the President of Zambia, His Excellency Michael Chilufya Sata; former Justice Minister Wynter Kabimba; current Justice Minister Edgar Lungu; Minister of Finance Alexander Chikwanda; the Director of Public Prosecutions, Mutembo Nchito; the head of the Anti-Corruption Commission (ACC); the head of the Zambia Revenue Agency (ZRA); the Inspector General of Police; and others, along with Mr M’membe, are part of an organized criminal gang. If Mr M’membe is to be charged and prosecuted, all the above personalities and entities must also be prosecuted without exception.

If brought to a court, the case would consist of the following criminal charges or elements of the crimes: conspiracy in committing and to commit the crime of deliberate and willful defrauding of the Zambian people of incurred tax revenues; aiding and abetting Mr Fred M’membe in not paying incurred income tax liabilities; accessory after the fact to the commission of the crime of deliberate and willful failure to pay incurred tax liabilities; conspiracy to engage in and engaging in organized corruption for the purpose of deliberate and willful non-compliance with incurred tax liability; negligence to enforce the law requiring criminal prosecution of law-breakers; political corruption; and other analogous crimes. A massive civil suit for civil conspiracy, economic harm to the nation, negligence, malicious intent not to pay tax liabilities and other analogous torts could also be mounted against the culprits.

The evidence in such a case includes the following, as reported by individuals and media representatives that have been vexed by the failure of Mr M’membe to pay income tax liabilities. These exhibits implicate, above all, the President of Zambia. Exhibit A is a certificate, seemingly from ZRA posted by the Daily Nation, showing The Post’s tax liabilities of billions of Kwacha from 2011, when the PF came to power, to the present. Exhibit B is a statement from Mr Julius Komaki, a PF member, quoted in the Lusaka Times on 9 September 2014: ‘We have always known that The Post newspaper have been avoiding to pay tax since we formed government. We have all the information about their deliberate failure to meet their tax obligations to a number of statutory bodies. We have information that indicate that The Post newspaper is owing ZRA more than K8 billion and that is a lot of money that can do many things to the economy of our country. We now want ZRA to vigorously pursue The Post newspaper so that they can pay so that the money can get into government coffers. They have been claiming that they have not benefitted anything from the PF government and President Sata when there have been lapses in paying tax.’

Mr Komaki would be a live witness to tell the court what and when the PF government knew about the criminality of non-compliance with tax liabilities on the part of The Post and Mr M’membe. With this knowledge, why did the PF not report this to the Directorate of Public Prosecutions (DPP) and the ACC? Mr Komaki is quoted as stating that, ‘it is a crime for a taxpayer not to be compliant’ and that ‘The Post is holding on to government money and that is tantamount to looting…’ Since the PF government had always known, why was nothing done before? Why now?

The Lusaka Times insinuates, based on the interview with Mr Komaki, that there seems to have been a quid pro quo with the future and now President of Zambia, His Excellency Mr Sata, for The Post not to pay tax in exchange for supporting Sata, which certainly aided in his victory over His Excellency President Rupiah Bwezani Banda in 2011. The Lusaka Times states and this would be Exhibit C, and the Lusaka Times editor would take the stand to amplify this statement: ‘The newspaper apparently stopped meeting its tax obligations soon after the PF formed government in 2011 and Julius Komaki says the newspaper had been singing praises for President Michael Sata even when they did not believe in his vision because the owner of the newspaper, Fred M’membe was seeking favours from the Head of State.’ Presumably these favours included not paying taxes in exchange for the newspaper’s support. Mr Komaki and the editor of the Daily Nation would be able to clarify what they meant by and what they knew about these favours. President Michael Sata would take the stand in court and state exactly what favours, if any, were exchanged, and whether they included non-compliance with tax obligations.

President Sata would have a lot to explain to the court: Why did the government of Zambia not do anything about this alleged non-compliance from 2011 to the present? Did the ZRA, DPP, the Zambia Police (ZP) and ACC know about this? If not, why not? If they knew, why didn’t they prosecute? Why did they instead prosecute poor traders from the Common Market for Eastern and Southern Africa (COMESA) and other weak individuals? Who else benefits from non-compliance with tax obligations? Mr Nchito and the heads of other institutions would take the stand to explain. The prosecutor would be an independent lawyer from outside the DPP’s office or the Ministry of Justice because these two institutions would be implicated in the case and one cannot prosecute his or her own case.

Ms Chisanga of ActionAid would take the stand and show her concerns about this massive non-compliance in tax liabilities. ‘I am passionate about [tax non-compliance] because tax pays for education, health, water and all other social services,’ she told the Lusaka Times. She had other serious concerns which Mr Komaki, the Minister of Finance and ZRA would have to answer on the stand in court. ‘There are a lot of things wrong with all this [Mr. Fred M’membe and The Post not paying taxes and not being investigated and prosecuted],’ she said. ‘Firstly I wonder where Komaki, a PF cadre, got this information? Why didn’t the Ministry of Finance say anything on this? Why has ZRA been chasing traders at COMESA and leaving out others like The Post in this case.’

Might it be plausible that the President of Zambia, who is consulted and informed about everything in Zambia, did not know about the tax matters involving The Post and Mr M’membe? Was there quid pro quo? Inferentially and circumstantially so, if we go by Mr Komaki’s and the Daily Nation’s insinuations. Further, what does common sense dictate? Did the ZRA know? Did ACC know? Did the police know? Did the DPP know? Did the Minister of Finance know? Were they consulted at all along the way by anybody to not do anything?

Interestingly, M’membe just might come out unharmed if there were to be prosecutions of all the individuals and institutions mentioned above. There are two key elements in a tax criminal case, and it must be asked if this was this tax evasion or tax avoidance? The entire case, and possibly the fate of Mr M’membe, would rest on this question, as tax evasion is a criminal offence, while tax avoidance is not.

Tax evasion is when a person or business hides its revenue so that it does not pay tax and the tax authorities are in the dark about the person or business’s income. The person or business would later be discovered to have hidden their income in order not to pay income tax. They had the mens rea or intent to deliberately not pay income tax, and had committed the actus reus or act of not paying.

On the other hand, if a person or business makes arrangements with the authorities not to pay tax and the authorities know clearly that the person or business is not paying tax as a result of that arrangement, and they do nothing about it, it is not tax evasion, it is tax avoidance. Such arrangements are legal in many jurisdictions, including Zambia.

These concepts are elementary in tax law and litigation. Foreign companies, particularly in the mining sector, don’t pay tax by government arrangement. Is criminality ever applied to such arrangements? Unfortunately, tax avoidance is the norm. Heart-breaking as this concept is, it is the legal reality. Tax avoidance, while still an example of corruption without being tax evasion, is not a crime since it is engaged in with government authorities. A person or business is able to be acquitted if investigated, charged and tried, as long as the person or business introduces evidence that they approached or were approached by the President of Zambia or other authorities and entered into a quid pro quo arrangement, whereby he or the business were not to pay tax and that the arrangement was known by the ZRA, ACC, DPP, Minister of Finance, Minister of Justice or the police, and that these individuals and government departments did not investigate him or the business until they fell out of favour with the government. This is a case that exemplifies the popular saying that ‘law is an ass’. It pretends to be very sensible and reasonable, but all too often it is not. For this reason, law must be distinguished from justice; the two are not equivalent.

This case could be taken out of the criminal field and applied to the civil context. Much more important, however, is that the issue could be taken into the realm of political accountability and governance, in that that the perpetrators of organized state criminality should meet their fate at the altar of the ballot box. Or by impeachment.

Mr M’membe would take the stand and answer the questions put to him: Is it true that you owe K8 billion in unpaid taxes? How did it come to pass that you did not pay taxes since 2011? Did you enter into a quid pro quo with President Sata and other government authorities not to pay taxes? Do you have any documents to show how if any arrangements were entered into? Have you been investigated by the ZRA, ACC, DPP, the Ministry of Finance, the police or others in matters of tax non-compliance?

The tax non-compliance trial of Fred M’membe would be larger than the fate of the man. It would additionally put state organized criminality on trial. The state does not criminally charge a person or business that will turn the tables against them, potentially bringing the state into open disrepute and leading to the loss of an election. How do the president, the ZRA, ACC, DPP, the police, the Minister of Justice and the Minister of Finance defend the charge of organized state criminality under the circumstances of this case, assuming as a fact that Fred M’membe’s Post has not paid income tax since 2011 when President Sata came to power, and given Mr Komaki’s statements that the government had always known about this fact? Fred M’membe will not be prosecuted because prosecuting him will involve the prosecution of the state of Zambia.

* Dr. Munyonzwe Hamalengwa practices law in Toronto, Ontario, Canada. His PhD Dissertation in law was on international individual and corporate criminal responsibility. He is the recent author of The Politics of Judicial Diversity and Transformation.

 

Zambia a Subject of Future Presidential Election Trivia

Dr. Munyonzwe Hamalengwa | January 19, 2015
ZAMBIA Reports

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Western countries love trivia games. People even become millionaires winning on trivia games. Those who write trivia questions also become millionaires.

Did you know that some unusual political happenings in the Zambian Presidential election of 2014/2015 may be part of trivia game shows in the future either in America or in Africa under the category “world history” or “Africa”? The following trivia questions eliciting the same answer could be asked.

As Zambia enters the historical triviasphere in the future, here is a sample and there is more where these come from and no doubt readers will formulate their own questions with precisely the same answer. This election also produced memorable comedy which will be the subject of another installment.

 1. Which country in history fielded more relatives including the wife of a dead president, a stepson, a nephew of the dead president, a relative by marriage contending for the office of the presidency from within the same party?

2. Which country in history had more aspiring presidential contenders to replace a dead president from within the same political party?

3. Which country in modern history produced a presidential contender from a political party by the show of hands and not through a secret ballot process?

4. Which is the only African country that produced such a disfunctional intra-party presidential contender which involved trips to the judiciary to clean up the mess?

5. Which country in recent history has produced the most violent intra-party presidential selection process?

6. Which country in history has had the majority of its dead presidents die abroad while they were still in office as well as out of office?

7. Which country in history has sent most of its political and economic class and their relatives abroad for medical treatment rather than relying on their own medical facilities?

8. Which country in history boasted of having an Acting President, an Acting Chief Justice and an Acting Deputy Chief Justice all at the same time?

9. Which country produced the only presidential candidate from the governing party failing to attend a presidential debate and expecting to win?

 10. Which country produced a presidential candidate who stated clearly that he had no vision and expected to win the election?

11. Which country had a presidential candidate who abandoned the presidential campaign trail to go abroad to beg for campaign funds and returned with a sackful of dollars and helicopters and the country tolerated it?

12. Which country produced a former President who when he lost the bid to run for president again from his party, joined the opposing party that he had intended to run against despite all the nasty things he had stated about that opposing party?

13. Which country in Africa has produced more political leaders forming parties or joining other parties and then abandoning those parties to rejoin former parties and or rejoining those parties they had abandoned and vice versa or crossing over to a totally new party?

14. Which country had a president who had no foreign head of state officially visiting and holding diplomatic discussions during the tenure of that president?

15. Which African country produced the most indiplomatic straight-shooting honesty second only to Idi Amin of Uganda?

16. Which country in the history of the world had allowed a presidential contender to run while the contender was facing criminal charges and undergoing a criminal trial?

 17. Which country in Africa had a political party win an election by promising to produce fundamental changes in its politics and economics within 90 days?

18. Which country in Africa utterly failed to deliver the campaign election promises of 90 days?

19. Which country in Africa has succeeded in having a white president after the collapse of white colonialism?

20. Which country in 2014/2015 Africa is trying its hardest to remain democratic despite the centrifugal forces swirling around the competitive election?

Dr. Munyonzwe Hamalengwa is the author of Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General.