Monthly Archives: March 2016

Police State During Our Times

Police State During Our Times
By Dr. Munyonzwe Hamalengwa
October 18th, 2015

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This is a review of Gerry Spence’s book: Police State, How America’s Cops Get Away With Murder(New York: St. Martin’s Press, 2015)pp338.
If this book was written by anybody else, let’s say for example the late famed African-American lawyer Johnnie Cochran, he or she would be outrageously ostracized as anti-police and anti-establishment, a hate-mongerer and worse, a terrorist. He would be shunned and marginalized. Just look at the harassment the hip hop artists suffered by their mere putting in art form their daily experiences or the experiences of their people at the hands of the police! The harassment has recently been depicted in the movie, Straight Out of Compton chronicling the lives of Ice Cube and Dr. Dre.
But this vitriol invective book against the police is written by one of America’s main stream legal giants, Gerry Spence. He is main-stream but an outlier lawyer. He has been exposing America’s injustices for over fifty years but without suffering any consequences. It can only be speculated as to why he has not been ostracized by the powers-that-be all these years.
Gerry Spence is reported never to have lost any criminal case since he was called to the Bar in 1952, initially working as a prosecutor. Spence has an interesting if not unique lawyerly history. He went to the University of Wyoming Law School which was not accredited at the time and it still ranks very low even in 2015 amongst America’s thousands of law schools. Thus Spence never went to the so-called Ivy-league law school to presage his unprecedented success and celebrity in the law. Spence failed his bar exams numerous times. When he eventually passed the bar exam, the only job open to him was to be a prosecutor, the lowest ranking job in the American legal profession at the time, just above a public defender.
After stringing some successes there because everybody plead guilty, (a system that still operates the same in America where close to 98% of the criminally accused plead guilty), Spence crossed over to the defence bar and he has never looked back. Spence has defended more high-profile and most difficult cases (both civil and criminal) than many defence lawyers combined, cases like Karen Silkwood, Randy Weaver, Imelda Marcos and many other cases. He has written about some of these cases in a lot of his books. Some of the cases have been turned into movies. He has also written about slavery and historic injustices perpetrated in the US by the police, the prosecutors and the judiciary. What comes out in all of Spence’s writings, speeches, appearances on TV like CNN and other avenues is a down-to-earth common sense approach to the practice of law. He makes his clients sympathetic. He touches the judges and the juries’s hearts, minds and consciences. He is overpowering. He is irresistible. He is civil and polite and never deviates from the common denominator truth or circumstances of the case.
Spence has dispensed with his approach to winning cases in many books including Win Your Case; How to Argue and Win Everytime; Give Me Liberty; Gunning For Justice; Seven Steps to Personal Freedom and others. He has written about some of his cases in books like The Smoking Gun; Trial By Fire; Of Murder and Madness; Gunning for Justice. He has written about injustices in books like Bloodthirsty Bitches and Pious Pimps of Power; From Freedom to Slavery; With Justice for None. Spence has even written one of the best books on the O.J. Simpson trial called O.J. The Last Word. Novels and portraits have not escaped Gerry Spence writing about his beloved Wyoming in books like Half Moon and Empty Stars; Gerry Spence’s Wyoming; A Boy’s Summer. If anybody wants to know how Spence became the most decorated lawyer in the last half century in America, Spence supplies the background in his autobiography entitled, The Making of A Country Lawyer.
I am very proud to state that I have all of Gerry Spence’s books and I have read all of them just as I have all of Alan Dershowitz’s books and Lord Denning’ s books all of which I read, along with almost any book that has so far been written about the O.J. Simpson case.
Spence’s latest book where he rails against the police in the US, in fact his findings are or can be applicable to many countries including Canada, England, France, Russia, China, South Africa, Israel, Zambia, Kenya, Nigeria and others is an invaluable tool to fight the continuing or emerging police state everywhere. This book deals with Spence’s actual cases where the police used violence, trickery or other misconducts against the accused including fabrication or withholding of evidence. When the police can behave the way they can “without fear of reprisal, is this not the conduct of the police in a police state?”. Then in some cases, there are prosecutors and judges who abate this conduct. Some defence lawyers in exchange for so-called good deals participate in the railroading of their clients.
This book is a call to action by one of America’s greatest advocates. He advises with equal applicability to many countries that it must be resisted that “In America…that police and prosecutors are trustworthy and will protect us, and that in America there is liberty and justice for all. Such is a mythology that enslaves”. Only a few wealthy individuals have a shot at justice in America and many countries.
Spence offers some suggestions as how to minimize and regulate police perpetrated injustices among others: all police interrogations must be video-taped from the beginning; police must wear video cams; there must be psychological and psychiatric tests for all would-be police officers; the police must be turned and trained into professionals just like lawyers, doctors, engineers etc; there must be truly independent civil oversight of police conduct; serious police training to diffuse tense situations moving from teaching police to shoot at first blush to considering alternatives; grand juries where the prosecutors lay out their cases without challenge from the defence must be reformed; no jailhouse informants of any kind (no informants of any kind); disclosure must be complete and wholesome; cure the dangers of overcharging so that something sticks; control the “courthouse club” consisting of police, prosecutors, defence lawyers and judges where accused are traded and deals are cut for future considerations and to streamline the dockets and the removal of politics from judicial selection processes.
Spence is not singing in the wilderness. People are struggling for justice, transparency and accountability everywhere. His book is a welcome arsenal in that onward struggle.

Dr. Munyonzwe Hamalengwa is the author of Getting Away with Impunity: International Criminal Law and South African Apartheid Criminals as well as among other books, The Politics of Judicial Diversity and Transformation. He practiced criminal law in Toronto for 25 years and brought numerous class actions and individual cases against racial profiling and carding. He is now an international consultant in social justice. He can be reached at mhamalengwa@sympatico.ca

A TRIAL BY JURY AND THE FORCILLO CONFUSION

A TRIAL BY JURY AND THE FORCILLO CONFUSION
By Dr. MUNYONZWE HAMALENGWA
February 15th, 2015
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There has been much talk about the jury verdict in the Forcillo case. This is an officer who was convicted of attempted murder when he actually killed somebody. The discussion on the possibilities of jury confusion did not go far enough. This is because all the talking heads had probably never served on the jury, in addition to the taboo about probbing jury verdicts in Canada.

This article discusses a book by one person who actually served on the jury in New York and whose lessons, Canada can learn from.  D. Graham Burnett’s book  is entitled, A Trial By Jury (New York:  Alfred Knopf, 183 pages, 2001).
Canadians can learn more about the jury system from this book, than their American counterparts, even though this book was written by an American to detail his experience of jury duty in New York.  The jury system in the U.S. has been studied and written about ad nauseum by those who experienced it, by scholars, in movies and theater.  The media, lawyers and others in the U.S. can interview jurors and get perspectives on why the jury decided a case in a particular way.  Jurors can write books about their experiences.
How did it come to pass however, that in Canada, one of the central pillars of the criminal justice system – the jury, is the least understood of all the ingredients that make up this system?  At the beginning of the jury trial, judges exhort that serving on the jury is the most important duty called upon on citizens.  Judges forget that those jurors already do a duty by paying income tax and some of them like myself are un-paid tax collectors for the Federal government via the GST.
At the end of the trial, jurors are disposed of like used Kleenex – thank you and good-bye.  No questions are ever asked as to how they felt after having been engaged in the most important duty of citizenship.  Were they treated nicely?  Would they serve again?  Could they write about it?  Could they spread the word about the beauty of jury duty?  Nothing.
Jury duty is shrouded in secrecy and ignorance.  Yet, when the jury renders a decision, everybody has an opinion on the jury without ever knowing how juries work.  Clinton Gayle for example, after being convicted of killing Constable Todd Baylis by an all white jury, accused the juror’s decision as being racially motivated.  A judge of the Superior Court of Justice in Ontario once called a particular jury panel as “highly gullible”.  A judge of the Ontario Court of Appeal once questioned whether jurors really understand jury instructions.  The Forcillo verdict brought myriad speculations about whether this decision was a compromise. We will never know as it is a criminal offence to go beyond speculation about jury deliberations. This is one area where despite the neandernthal character of US criminal justice system, Canada can benefit by adopting the American system of probing the jury system.
How can we ever know anything when it is a criminal offence to probe whether Gayle’s evaluation is correct or a judge’s belief that a jury panel was highly gullible or whether jurors understand the jury charges, when we are not allowed to know anything about jury deliberations?
The Supreme Court of Canada once refused a constitutional challenge to probe a particular jury decision.  And yet quite a lot of appeals are based on judges having been wrong in charging jurors.  We however, do not know for sure that the mischarge led to a particular decision or indeed whether the decision was independent of the mishcarge or that the jurors ever understood the charge.  As they say down south “we don’t know nothing.”
What can we learn from this book by Burnett?  First, remove juror ignorance.  Burnett states that, “where juries are concerned, the courts pay particular attention to ignorance:  keeping the jury in the dark – about certain pieces of evidence deemed inadmissible, about the procedural technicalities that constrain the activities of the court, about the most basic sense of what is to be expected in the unfolding of a trial – clearly constitutes an important aspect of judicial practice”.
Juries are expected to do an important duty, yet they are kept in “serviceable ignorance.”  This is compounded in Canada by overall societal ignorance about jury deliberations.
The second thing is that “there was a great deal of confusion regarding the technicalities of the charges and that people had significantly different abilities to think insightfully about the evidence.”  The author wanted to acquit the accused to reflect his rejection of the competency of that body of jurors to reflect weightily on a matter of such seriousness.  Judges charge the same all the time without probing juror abilities or prejudices.
The accused was charged with murder.  The verdict could be first-degree murder (intention to kill or depraved indifference as to whether the victim died), manslaughter (no intention to kill) or acquittal (based on self-defense.)
The third issue was prosecutorial posture:  “the mocking tone, the histrionics with the knife, the obsequies and sarcasm.”  The prosecutors always behave as if they are on the side of the truth and justice even when disclosure is hidden or police fabricate evidence or do an incompetent job.
The fourth issue was the power of the state:  “All of us probably would have agreed in the abstract, before the trial even started, that the state was powerful.  But after four days of sequestration, we had developed a new and immediate appreciation of just what this power meant:  the state could take control of your person, it could refuse to let you go home, it could send men with guns to watch you take a piss, it could deny you access to a lawyer, it could embarrass you in public and force you to reply meekly, it could send you to the gaol – even without accusing you of a crime”, writes Burnett.
That is why the burden of proof on the state is high – exactly because the state is so powerful.
Most of the people in Canada or the U.S. will never serve on jury duty.  Reading this book is the closest many people will ever come to experience jury duty.  Jury duty is one of the most difficult duties there is out there – 12 strangers from different backgrounds, cultures, races, prejudices, abilities, classes and so on being charged to come up with a unanimous verdict within a reasonable time while someone’s very liberty is at stake.  Yet this duty in Canada is shrouded in secrecy.  It is a criminal act to probe jury deliberations.  What a charade!  But what a great read A Trial by Jury is.

*  Munyonzwe Hamalengwa practiced criminal law in Toronto  for two decades.

The Arch of History Always Bends Towards Justice: The Obama Case

Dr. Munyonzwe Hamalengwa

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America is one of the most difficult countries to rule because it is so polarised on so many fronts: economically, politically, racially, culturally and so on. Any president would find it difficult to govern.

It is much more so difficult to govern and accomplish much when a segment of the democratic coalition (the Republican Party) deliberately sets out from the beginning of your governorship to obstruct you from accomplishing your goals. And when they have never or rarely ever done this to any other President in living memory. Because of the intense obstruction, they go on to still accuse you of not doing enough to govern the country and to deliver, knowing that you did not win the presidency to fulfill their conservative agenda or pander to their every whim.

There should be no doubt in any one’s mind that one of the reasons why Obama has been so overwhelmingly obstructed is because of his race. There is hatred, punitiveness. jealousy and ideological irreconcilability that fuels the Republican wheels against Obama.

There is also a coterie of black intellectuals represented by Cornel West, Tavis Smiley, Ajamu Nangwaya , those in the Black Agenda publication and others who also perceive that Obama has done nothing or very little for his people. These intellectuals, like white critics forget that Obama is the president of all of America and in fact cannot do everything for everybody. And he was not elected to fulfill their self-perceived narrow agenda. Of course every president can do a little bit more on many areas but there are just so many competing interests to be able to accomplish all.

Obama’s predisposition has also been an alienating factor. He is given to too much compromise with the enemy which doesn’t reciprocate or compromise. Obama has been sold down by his desire to compromise. He could have done much much more for African Americans, the Middle Class, the Social Justice constituency and foreign allies if he stood up much more defiantly to the Republican bullies than he did, especially in the first term when he still had a lot more political capital and had control of both houses of congress.

Obama calculated that he could get more accomplished by compromising than bulldozing. History will judge this calculus.

Obama was obstructed on releasing the Guantanamo prisoners, the health care agenda, the foreign policy trajectory, massive criminal justice reform, immigration reform and so many other areas.

Now the critics from the left and especially from Black intellectuals, must really ponder whether their vehement criticism can still hold water in the light of Republican opposition to Obama’s nomination of a Supreme Court justice to replace the deceased Antonin Scalia. The Republicans didn’t care about who he was going to nominate or his qualifications, it could even have been Jesus Christ as a nominee, they didn’t want Obama to nominate anyone. These are the same hypocrites who were accusing Obama of violating constitutional norms, an unfounded baloney, but when he is following the constitution, they say he cannot do it because the people have to speak first. But people have spoken twice endorsing him as President of the United States of America.

The answer to the critics on the left and to Black intellectuals about why Obama allegedly did not do enough for Blacks or the Social Justice Constituency is found in the insane opposition by the Republicans to Obama’s chance to nominate a Supreme Court replacement. That is how precarious Obama’s presidency has been held by the Republicans. He has been held hostage, for simply having won that presidency as a Black man, just like Haiti was made to pay a hefty price by France for daring to liberate itself from Slave and colonial bondage in 1804.

Republican obstruction as I have already said is not the only explanation here, Obama has always been given to compromise. That is how he became the first Black President of the Harvard Law Review and the President of the Untied States of America.

Here is the irony, despite the gargantuan opposition and obstruction to the Obama presidency by the Republican coalition, Obama has accomplished more of his agenda and induced more positive pro -America vibes in the rest of the world than just about any American President in centuries. Now imagine if he didn’t face that deliberate, racist and vengeful vindictiveness by the Republican Party and its counter-parts in the Democratic Party and others! He would have been a shining light into eternity. Obama will always have a reserved space in the annals of history.

The arch of history, it has been stated, always bends towards justice. Obama has been on the side of justice, and so has justice.

 

Dr. Munyonzwe Hamalengwa practiced law in Canada for 25 years. He is the author of The Politics of Judicial Diversity and Transformation, as well as The International Law of Human Rights in Africa and more recently, The Case Against Tribalism in Zambia.

 

Where there is no will, there is no way

By Dr. Munyonzwe Hamalengwa
October 9th, 2015

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In dismissing a case of stepchildren who wanted division of property after the death of a stepparent who left no will, the judge stated, “this case is an example of the personal difficulties and harm to relationships that can occur when an individual does not have a will”. Even when an individual does have a will, many difficulties do arise. Wills can be challenged. People emerge out of the woodwork to claim a piece of the action. Litigation does arise which sometimes can take years to untangle.
>> The most difficult post -death relationships involve blended families, like the case under discussion. The difficulties arise mostly because of the absence of a will. Some people become overly greedy when a breadwinner dies. Stepchildren could get left out. Thus the need for a will to prevent future difficulties and to preserve family harmony.
>> Difficulties sometimes get more protracted the more prominent or celebrity or wealthy the deceased person was who had a blended family. The examples of Nelson Mandela, Bob Marley, and James Brown come to mind. A maze of litigation arose after the death of these icons from different members and economic interest groups after the death of these icons. These icons had blended families. Marley had no will. Mandela had a will. Brown didn’t have a will.
>> Most of the Black world around the world do not have will. There are lots of blended families in this Black world. Most deaths do not result in difficulties but when difficulties do arise, they arise because there was no will left by the deceased person of the blended family. Family harmony gets shattered at a time when harmony is most needed.
>> The answer is simple. The Black world, especially that which is engaged in blended relationships, must draft and have Wills. Stepchildren are not generally protected in current succession laws of many countries when the biological parent dies first and without leaving a will. I don’t think there is anything more important than leaving your family especially your children living in relative comfort as we go the world beyond.

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

Police Above the Law in Peel with SIU complicity

By Dr. Munyonzwe Hamalengwa

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Obstructing a police investigation or an investigation by the Special Investigations Unit (SIU) or tampering with the scene of a crime or accident would land almost anyone other than the Peel police in the shooting death of Jermaine Carby (Sept. 2014) with a charge of obstructing justice. An unnamed police officer allegedly removed an alleged knife from the scene where Carby was shot to death by the police, allegedly for moving towards the police with the alleged knife.

If the story of the alleged knife is to be believed, everything that has followed puts paid to the falsity of the veracity of that story. Everything that followed is horribly wrong, unjust and an outrage. No autopsy has been done or was done and it is now over a year since Carby was killed. I was the first lawyer to be on the case so I know what happened from the beginning. I had to write a very strongly worded letter to the funeral home where Carby was kept before the family was allowed to see the body. The family was refused to get any notes from any body about what happened to their loved one.

The Director of the SIU Tony Loparco took an extraordinary amount of time to complete his report and it took him two months to hand over the report to the Coroner’s office, a feat that must only take a week or two to accomplish. The report itself should only take two or so months to complete as police officers are required to cooperate completely with the SIU investigation. The Director who has adequate support staff around him can easily complete that report in no time. There are not too many such cases to occupy his time.

Alas, the report itself is secret thereby abrogating all avenues of accountability and responsibility. The Peel Police Services Board has refused to release the report. The Peel Police Chief Jennifer Evans who sits on the Board is on record stating that carding (Also known as Racial Profiling) will continue despite the lack of evidence that this is a useful tool for investigation. This is not a police chief who would be interested in releasing any report to the public. Loparco says the officer who allegedly removed the knife would not be charged. Evans would also certainly not charge such an officer, who remains unnamed and unknown and protected by the the women and men in Blue. The men and women in Blue want the civilians to cooperate with them in criminal investigations, yet they protect their own when they commit crimes by removing evidence.

So far there is no Coroners inquest thus the family and the public will continue to be in the dark as to what happened to Carby when he was killed by the Peel police.

It is possible that there was no knife and the knife that the police handed over to the SIU was planted. Police have planted evidence in a number of cases in Ontario and judges have so found. Police have planted drugs on suspects. Police have stolen money and other property from suspects. An officer investigating Guy Paul Morin admitted that he was carrying drugs on him and that it was routine to do this. Was the alleged Carby knife fingerprinted? Why did an officer, feel it necessary to remove such piece of evidence from the crime scene? Why is the public not given the report to see the findings on such an issue? Why are we left to speculate?

The circle leads back to the harpless Peel Police Services Board. The responsible Minister is referring all questions on this massive cover-up back to the very platform that refuses to release the Report, ie the Board. Yet the Minister is responsible for this conduct. What the Board is doing is purportedly authorized by legislation. There you have it. The police are above the law since allegedly what they did is authorized by law.

But there is a zone called discretion which permits the provision of what is called the “interests of justice”. Justice has not been served in this case. Justice in this case and related cases cannot be served because of systemic and embedded predilections on the need to protect the police. Name these. There are many. All directors of the SIU since its creation have either been sitting or retired white male prosecutors. These are people who have worked with the police all their lives. They are not about to sacrifice the career of a police officer who shot a Black person. Further there have been close to 100 percent clearances of police who have shot to death Black people. The Police chiefs have been until recently in Toronto white male who all approve of carding and racial profiling. These same people are not about to charge any police officer for wrong doing.

The legislation gives police overwhelming powers of investigation and conduct. This legislation is drafted by white men without the input of the subjects and victims of this very legislation. This legislation makes the police to behave like they are above the law.

The victims of police violence have a lot of work to do to undo this embedded injustice. The Carby case is another teachable moment.

 

Dr. Hamalengwa’s latest book is entitled, Getting Away With Murder:International Criminal Law and South African Apartheid Criminals (2015). He is also the author of The Politics of Judicial Diversity and Transformation(2012).

Critical notes on the legal system of Zambia

Submission to the legal and Justice Sector Reform Commission in Zambia
Munyonzwe Hamalengwa and Charles Mwewa
2014-09-18, Issue 694

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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.

Obama needs to address the justice deficit in America

President Obama’s Department of Injustice – The New York Times
Munyonzwe Hamalengwa, PhD,

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Our man in Washington, DC could do better than this. The proposal at the end of the article, to create a position of special counsel to review anomalies or lacunae or injustices in the justice system would be good for Zambia as well.

If Obama, a liberal constitutional lawyer can’t fix these injustices in the criminal justice system, who ever could?I am aware that Obama has a lot on his plate, but he had a black Attorney General in Holder, he also now has not only another Black Attorney General in Lynch but also a female at that, therefore with multiple identities and sensibilities as a consequence to be more sensitive to the impugned injustices. I know a president cannot fight alone, I know he has been obstructed in dealing with social justice and civil liberties including closing Guantanamo, but with this knowledge and with his last term coming to an end, he can do more. He seems to realize this beckoning.
> The failure to publicly apologize for slavery on behalf of all previous and future U.S.  Governments, the failure to pardon Jack Johnson (first black heavy weight champion for wrongful conviction, John MacCain has been championing the pardoning of Jack Johnson), the failure to pardon Leonard Pelletier (a native Aboriginal leader falsely accused and convicted of killing an FBI officer, now proven that the evidence was false)  etc  are inexcusable. But he has time if advised to correct these and other palpable injustices.
> On balance, he has done better than all previous U.S. Presidents in being more sensitive to the plight of African Americans and other minorities and women, he reformed the health care system which benefitted more African Americans than any other group, he has done some criminal justice reforms, he has pumped billions of dollars into educational programs that have benefitted African Americans, he is endeavouring to reform the Immigration system, he has normalized the relations with Cuba, he will get the U.S. and Iran deal and many other historic deals known and unknown. Jonathan Alter has written two books extolling Obama’s unprecedented successes. So have many other writers.
I am only crying in the wilderness because this is a man who could do more closer to home, like the individuals profiled in the article that I have linked below.

Munyonzwe Hamalengwa, PhD,

South Africa’s unfinished business of apartheid

A review of ‘Getting Away With Impunity: International Criminal Law and South African Apartheid Criminals’

Austin Mwange
2015-08-05, Issue 738
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Although apartheid is a crime against humanity under international law, no one has been prosecuted for it. That means criminals who perpetrated this evil system are still free. It is a problem that South Africa – and the world – needs to address, according to a new book.

The book, “Getting Away With Impunity: International Criminal Law and South African Apartheid Criminal”, is written by Dr. Munyonzwe Hamalengwa who has been practicing criminal law in Canada for twenty five years. The book is based on his PhD thesis in Law at Osgoode Hall Law School in Toronto.

Dr. Hamalengwa seeks to answer the following question: if apartheid was declared as a crime against humanity by the International Convention on the Suppression and Punishment of the Crime of Apartheid, a United Nations Convention that was ratified by 110 nations, why has no one ever been prosecuted for this crime? Moreover, the compromise in South Africa between the architects of apartheid and the liberation forces was that those who did not confess to the crime of apartheid would be prosecuted. The few that were prosecuted were not prosecuted as criminals against humanity as the Apartheid Convention required or as stated by the Truth and Reconciliation Commission. They were prosecuted as mere criminals under South African law, which does not bear the same force as prosecution under international criminal law.

Dr. Hamalengwa states that South Africa simply decided that the hearings of the Truth and Reconciliation Commission were accountability enough. That justice and peace have been secured by this process though it is an unfinished business. This inability or unwillingness to prosecute apartheid criminals is a violation of international criminal law. South Africa continues to violate international criminal law as evidenced by its recent decision to let go of Al Bashir of Sudan who is under a warrant for arrest by the International Criminal Court, according to Dr. Hamalengwa in a recent interview.

Dr. Hamalengwa’s last chapter concludes that South African racial relations will continue to resemble those of the USA for generations to come. The lack of prosecutions of those who were identified by the Truth and Reconciliation Commission will continue to stir the pot of resentment in South Africa. Apartheid criminals eventually will be brought to account for their crimes. Hamalengwa states that calling for accountability for apartheid criminals is not seeking revenge. It is justice taking its natural course. History is replete with many examples as catalogued by Dr. Hamalengwa.
According to the author, apartheid is a fresh wound. It is an unfinished business. The majority of the perpetrators are still alive. The majority of the evidence is still there. They were named by a commission of inquiry. They have not confessed or apologized. The injustice will not go away until apartheid criminals are brought to account and that is the lesson that history teaches us. The economic disparities between blacks and whites in South Africa continue to feed the historic injustices. Land redistribution has not been aggressively pursued. Reparations that were recommended by the Truth and Reconciliation Commission were never made. South Africa will continue to sit on a time bomb until the ghost of the injustice of apartheid is exorcised by prosecutions or other visible reparations for the crime.

This book has a wide historic survey of how international criminal law can be brought to bear to resolve historic injustices so that criminals do not get away with impunity.

Like almost every book ever written, there are omissions or weaknesses in this book. Reliance on international criminal law to hold regimes accountable for past injustices is a tall order. The application of universal jurisdiction is not yet an international state practice. National sovereignty is still the order of the day. Western nations that designed the current international criminal instruments themselves avoid being caught in their application by either not ratifying the instruments or exempting themselves from being caught. No western country for example ratified the Apartheid Convention because they themselves were engaging in apartheid-like practices so they cannot prosecute apartheid criminals and set a negative precedent against themselves.
Canada, for example, which Dr. Hamalengwa uses as an example that could prosecute apartheid criminals as a number of apartheid doctors escaped to Canada by way of migration, consciously did not name apartheid as a crime against humanity when it domesticated the International Criminal Court statute that identified apartheid as a crime against humanity. The USA has not ratified the ICC statute for fear that its practices abroad would attract international criminal prosecutions. Some scholars have stated that international criminal law is an instrument of politics where western countries label former colonies as criminal states or terrorist states so that they can attack or isolate them. The application of universal criminal jurisdiction is a terrain of struggle and it may be that Dr. Hamalengwa is exposing western hypocrisy in this book.

The book would be strengthened if Dr. Hamalengwa concentrated on identifying domestic processes and constituencies that should propagate the prosecution of apartheid criminals within South Africa. This is an internal process. Universal application even of civil jurisdiction in the United States using the Alien Tort Statute to hold companies that aided and abetted the crime of apartheid to account recently failed. There is no African Union criminal tribunal to prosecute apartheid criminals. Thus, the internal processes and dynamics are critical to holding apartheid criminals to account. There are groups in South Africa like the South African Litigation Centre that must be supported in fighting the impunity of apartheid criminals.

You will do well to buy a copy of this insightful book at K180 from Planet Books at Arcades Shopping Mall (Zambia).

Feminism and Intellectual Property: Will Women Judges Make a Difference?

Feminism and Intellectual Property: Will Women Judges Make a Difference?
Munyonzwe Hamalengwa | December 7, 2012

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Women have climbed to the highest apex of judicial power in a number of countries. They have also climbed higher in positions of power in several countries. Both the Chief Justice and Deputy Chief Justice in Zambia as of mid-2012 were female jurists. The Chief Justice of Nigeria is a female. The Chief Justice of Canada is female and she has two other female jurists alongside her. The Chief Justice of Sri Lanka as of at the end of 2012 is female. The US Supreme Court has three female justices. In 2012, the Congress of the United States elected more women to its Senate than at any other time in the history of that institution. Rwanda’s legislature has more than 55 percent women. Women in South Africa have held significant posts in Parliament as have women in Canada. There are female presidents in Germany, Liberia, Malawi, Jamaica, Chile, Brazil and elsewhere.

Given that this is an economically globalised world, where technological knowledge is power, women are posed to increasingly influence the diffusion of knowledge.  Whoever controls the technology controls the power. One aspect of technological control, revolves around the influence “intellectual property” ownership engenders. This in turn relates to who controls the law of intellectual property.

This article discusses how men have controlled intellectual property regimes both in law and politics and whether the increasing number of women in the judiciary and politics will affect this important area of legal and political discourse. I begin the discussion with how law has been regarded historically and the intellectual challenges that view has been subjected to.

Feminism along with Marxist, Critical Legal Studies and Critical Race Theories have mounted serious challenges to the inherited western legal tradition that has claimed that law is neutral and objective even though law, from time immemorial has neither been class, gender and race neutral nor objective. There was a time when slaves, poor people, aboriginals, women and blacks could not vote; when women, aboriginals and blacks could not serve on juries or go to school; when women, aboriginals and blacks could not own property; indeed when blacks were property of others themselves; when women could not enter into contracts; when women, aboriginals and blacks could not be lawyers; when blacks could not enter a room or drink water through the door or fountain used by white people; when blacks and aboriginals were enslaved or colonized; when women and black people’s evidence in courtrooms was only accorded half the value of evidence given by a white man. Yet law managed to claim and still claims that it is neutral and objective.

The assault of Feminism, Marxism, Critical Legal Studies and Critical Race Theorists on the supposed neutrality and objectivism of the western legal system has to some great extent engendered palpable paradigm shifts and intellectual understandings of the actual designs of the law and along the way, major reforms have occurred: women and black peoples’ evidence is accorded on the surface the same weight as that of the white men; anyone can serve on the jury and can vote and go to school and slavery is prohibited; women can enter into contracts and own property. But there are still major problems experienced by women, aboriginals and the developing world in gaining full and equal recognition and status in the dispensation of intellectual property law. Feminism is perhaps the most potent intellectual current that is deconstructing this area of legal impairment.

Feminism, Marxism, Critical Legal Studies and Critical Race Theories while aimed at deconstructing the actual design of the law and the purposes served by law and in whose interests and to whose disadvantage law is generally deployed, approach the analysis of law from different situational and experiential perspectives: feminism examines the law from the point of view of the interests of women; Marxism from a class point of view; critical legal studies from power relations point of view and critical race theorists from the point of view of race dynamics. These systems however are not totally exclusive or totally dismissive of other perspectives (though Marxism comes close in dismissing other perspectives and seeks dominance). Further, within some of these perspectives are contained various strands of thought: in feminism for example, there are Marxist, socialist, radical, conservative and liberal feminisms and other strands that I have just recently encountered, for example, “difference feminism.” All these strands emphasize different aspects of concerns within the feminist framework.

While aware of the different strands within feminism, several feminist intellectual property scholars emphasize the need for a clear- cut broad dichotomy between female perspectives as a group and the male-oriented  and designed legal constructs on the other hand. Only by looking at it in this polar opposite way can the phenomena being examined be brought out in clear and sharper perspective. Women and men have broadly experienced law differentially. This includes intellectual property.  While feminism has examined many other areas of the law and exposed their chicanery- family law, criminal law (rape, prostitution, and evidence), property law, immigration law, contract law employment law, business law and others, feminism has not looked at the impact of intellectual property law until recently. But like the other areas of law, intellectual property was male designed and male oriented to the total exclusion of the interests of women. Intellectual property law as designed by men was totally inimical to the interests and nature of women, qua women. Like many areas of law, intellectual property therefore has gendered aspects. Each of the articles described below gives examples of this gendered nature of intellectual property law.

Burk in “Copyright and Feminism” states that the neglect of intellectual property in feminist analysis is surprising given its increasing prominence and potential impact on the quality of life for millions of men and women across the world. In another article, Burk, in “Feminism and Dualism”http://ssrn.com/abstract= 928421 states that intellectual property law constitutes perhaps the primary policy tool by which society influences the development and design of new technologies. Others have stated that intellectual property is the most potent form of modern imperialism. Intellectual property as it is designed expropriates the inventions and cultural artefacts of not only women but developing countries and aboriginal communities as well, to their disadvantage. So studying and deconstructing intellectual property is of the utmost importance.

Why is the feminist framework important in analysing intellectual property? Burk  answers that “a feminist approach encourages us to ask not so much where such intellectual property doctrines require us to draw the line between creativity that is rewarded and creativity that is not, as it requires us to ask why such criteria was selected in the first instance.” Why is intellectual property designed the way it is: gendered if you look at it from a feminist perspective; class oriented if it is examined from a Marxist perspective; race and culturally and national specific (or developed and developing world-divide) if you examine it from the critical race perspective–a perspective that is inclusive of aboriginal perspective and power-driven if you examine it from the critical legal studies framework?

Bartow in “Fair Use” seems to answer this question perfectly: “Many substantive bodies of law have fairly obvious gendered aspects” as already mentioned.  Not only that but “copyright laws were written by men to embody a male vision of the ways in which creativity and commence should intersect.” On top of this “men dominate congress {law making body} and the federal judiciary {Law interpreting body}.”  Men have defined key copyright concepts such as “authorship,” “protectibility,” “infringement” and related terms.  Men defined that copyrightable items must constitute saleable “property”–a masculine construct according to Burk, best suited for “industrialized commoditization” and this realm excluded arts and crafts which were consigned to the domestic realm. This realm was populated by women. Commercial exploitation is the subject of copyright.

Intellectual property has had the effect of the marginalization of women’s work and creativity. Pollack in “Towards a Feminist Theory” covers this well in her article. Intellectual property ignored to cover areas of practice engaged in by women: food and the clothing processing industry. Intellectual property rewarded the so-called individualist and solitary productions of single actors (men) exemplified by copyright grants to authors-mainly men and patent grants to sole inventors-mainly men to the exclusion of communal, collective and group endeavours engaged in by women.

Shelly Wright in “A Feminist Exploration” examines at length how “intellectual property law may be implicated in the exclusion of women and the denigration of an artistic tradition where women have contributed: the English novel and needlework.” From the beginning of copyright law regime in England, “female painters, sculptures, engravers, printers and craftsmen were largely ignored by the artistic establishment” and this tradition continues to some extent in the present times. Another clear example of gendered relationships in intellectual property that is commonly discussed is that of food and clothing processing. The exclusion of food and clothing processing from the copyright regime is gendered.

Pollack argues that since 1976, genderization of intellectual property has increased because of Congress’s enlargement of private ownership rights at the expense of the public domain, which Pollack claims to be inherently feminine (female), i.e the public domain. The reasons for characterizing the public domain as feminine are the following: it is not commodified; it recognises the communal roots of creation, rather than the atomized solitary and romanticized individual “author” or “inventor”; the public domain is concerned with “nurturing” and it provides essential nourishment by the “birthing and lactating mother.”

As these articles reveal, feminism has much to tell us about intellectual property law. It also has a lot to tell us about modern intellectual imperialism, a contributing factor to poverty in the developing world and the marginalization of aboriginal communities in the developed world. Will women judges now untangle the untangleable?
– See more at: http://afrikangoddessmag.com/2012/12/07/feminism-and-intellectual-property-will-women-judges-make-a-difference/#sthash.AaMARlIn.dpuf

Kenneth Kaunda: The Missing Legacy

Dr. Munyonzwe Hamalengwa
The African Executive
25 – 01 April 2015

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There is a West African adage that says that “when an old man dies, a library burns to the ground.” Old people are generally the storage of knowledge which is rarely recorded. In the western world, a lot of leaders leave that knowledge through autobiographies or biographies.

Kwame Nkrumah may have been propelled by the adage because he wrote a lot that is now common heritage to humankind and Ghanaians have a reference point to their evolving history.  Nigerian leaders have also obeyed the adage. Olusegun Obasanjo wrote like there is no tomorrow. So did Nnamdi Azikiwe. Obafemi Awolowo’s website is impressive in terms of what he wrote about his country and his struggles for independence and to keep Nigeria together.

Down South, Nelson Mandela left a legacy of knowledge through his writings. South Africans will never be left wondering what Mandela did or thought, who he dealt with and for what and how South Africa benefited from the existence in South Africa of a man named Mandela.

First generation leaders wrote a bit about their struggles for independence. For example President Kaunda wrote his Zambia Shall be Free; Jomo Kenyatta wrote Facing Mount Kenya;  Oginga Odinga wrote his riveting Not Yet Uhuru. In Tanzania, Julius Nyerere wrote more about his plans for economic development and  the philosophical underpinnings than the others in East and Central Africa. He was closer to Nkrumah in terms of leaving a legacy of his thoughts.

In terms of autobiographical legacy, Mandela may be the top African leader to bestow his people of this knowledge that cannot be obtained in any other way about the man other than the man himself. What is impressive about Mandela is that he wrote his autobiographies before, during and after his tenure as president.

Zambia is marked by the poverty of the writings of its leaders. There is a serious danger that we will never know what made President Kaunda to tick and what motivated him to sacrifice the economic and political survival of Zambia by his support for the liberation of Southern Africa.How did Kaunda manage all the pressures from the British, Americans, Chinese and the Soviets? How did he manage to construct the ideology of humanism? What are its origins and philosophical underpinnings? Where did he get the idea of tribal balancing and how deep it was? How exactly did he negotiate the survival of Zambia in that turbulent region for 27 years? Did he ever think of resisting the transfer of power despite the loss in 1991? What has life been like since he left power and living under the presidencies of Chiluba, Mwanawasa, Banda, Sata and Lungu? What legacy does he think he will be leaving Zambia with?  If he was given a second chance to rule Zambia, what would he do differently? So many people have raised all types of questions about Kaunda’s governorship. What would be his answers?

Mandela wrote many books in the short time that he lived after jail.  Our President ruled for 27 years and has been out of power for 24 years. There is a lot that could have been written to leave a long lasting fount of knowledge for Zambians, a legacy of knowledge that cannot be obtained anywhere else.  Others have written about Kaunda but it is not the same kind of knowledge as that which would be expounded by the source himself.  The Post newspaper put out a 90th birthday commemorative issue in  2014, to which  I was privileged to contribute.  A lot of contributors broached interesting subjects to which only Kaunda can expand on.  Zambia is thirsty for the knowledge about their first president. The Post used to carry Kaunda’s reminiscences and they were fascinating but they are now difficult to access if they still exist at all. Maybe a collected reminiscence of Kaunda as previously published by the Post can be put together.

Hopefully Zambia will not continue to live in drought.  Some leaders have contributed significantly to the personal experience knowledge of Zambia but we need the source himself to quench our thirst.  Vernon Mwanga stands at the top of leaving a legacy of knowledge for Zambia. He has written autobiographies or aspects of his life in such books as An ExtraaordinaryLife ( volume 1 and 2); The Long Sunset; The Other Society  among others.  Simon Zukas has also written, Into Exile and Back.  Sikota Wina’s Night without a President is unequaled;  Mwanakatwe has written a fantastic autobiography, Teacher, Politician, Lawyer: My Autobiography;  Alexander Grey Zulu, the closest to the seat of power in Zambia under Kaunda has written a useful autobiography, Memoirs of Alexander Grey Zulu. President Chiluba wrote quite a readable albeit not comprehensive book constructed initially as an academic project entitled, Democracy: The Challenge of Change.  Amos Malupenga has written about Mwanawasa. Charles Mwewa has written about Michael Sata.  A biography is different from an autobiography.

Kaunda re-launched his pre-independence autobiography on March 6th, 2015.  Given the interest shown in that publication by the Zambian masses, it is clear a full blown autobiography mapping his life from 1964 to present, will be a monumental legacy for Zambia. The West African adage of “when an old man dies, a library burns to the ground” is a real prospect for Zambia.

Dr. Munyonzwe Hamalengwa is the author of Thoughts are Free: Prison Experience and Reflections on Law and Politics in General (1991); Class Struggles in Zambia, 1889-1989 and theFall of Kenneth Kaunda, 1989-1991 (1992); The Politics of Judicial Diversity and Transformation (2012) among other publications.