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Chitimukulu digs up presidential petition in new analysisBy Guest Digger on 21 May 2017
LAWYERS FAILED HICHILEMA
By Henry Kanyanta Sosala
Martin Luther King said: “our lives begin to end the day we become silent about things that matter.”
My heart and mind throb and swell in great anguish over the deplorable state of the legal system in our country and I have therefore not written on this important national issue with kid gloves, but to tell it like it is _ the truth as seen through my own spectacles and nothing but the truth.
The sequence of the development of our country’s laws follows that the Members of Parliament (sometimes referred to as law-makers) enact laws which are interpreted by the courts and enforced by the police. But the most unfortunate dilemma has happened where judges and lawyers have lamentably failed to interpret the Constitution and have thrown the entire nation into the worst type of uncertainty. We have embarrassing situations where High Court and Constitutional Judges are making 180 degrees u-turns on their own earlier rulings.
And deducing from the press reports of what went on at the Constitutional Court I strongly believe that the petitioners, i.e., Hakainde Hichilema and Geoffrey Bwalya Bwalya Mwamba who were represented by the supposed strong legal team of thirteen lawyers with the total accumulation of over fifty years of legal experience were not effectively and adequately represented.
What Confucius, the Chinese sage, said has not lost one iota of importance after 25 centuries:
“If language is not correct, then what is said is not what is meant; if what is said is not meant, then what ought to be done remains undone; if this remain undone, morals and acts will deteriorate; if morals and acts deteriorate, justice will go astray; if justice goes astray, the people will stand about in helpless and confusion. Hence, there must be arbitrariness in what is said. This matters above everything.”
And indeed our country as at now stands in total legal confusion.
Mr. Colin Cunningham (the most shrewd lawyer this country has ever had) used to say that any lawyer can twist law in anyway, but must never try to break it. I think the greatest challenge the legal system is facing in relation to the Constitutional Court is that there have been a great laxity in our courts to adjourn cases on flimsy excuses. And unfortunately this is the hangover which both the Judges and the petitioners’ lawyers over-carried to the Constitutional Court.
And to my great disappointment as you will note from this article, they seem not to understand the “power” and the “rigidity” of the Constitution, which is regarded as any country’s “Bible”. And I had learned from Mr. Cunningham that no one can even change a full stop into a comma in the Constitution when I asked him why Dr. Kaunda had refused to entrench the Barotseland Agreement in the Constitution at the time when the Zambian delegation was negotiating the independence of Zambia in London in 1964.
And indeed I later learned from Gerald L. Caplan’s paper: Barotseland: The Secessionist Challenge to Zambia:
“Clement Zaza, UNIP’s political assistant in Barotseland openly acknowledged a year later: ‘The Barotseland London Agreement was agreed upon merely as a passport to enable Zambia to integrate Barotseland and proceed to independence as one country. After all, the Zambian government has no moral obligation whatsoever to honour the said agreement’.”
And when the UNIP administration decided to diffuse the “power” and the “rigidity” of the Constitution in order to pursue its tyrannical agenda without interference, it introduced the “referendum to end all referenda.” And on the 1964 Constitution, let me quote from Akashambatwa Mbikusita-Lewanika’s manuscript, Sower of the Independence: Case for Re-Decolonization of how the UNIP regime maneuvered to take total power to control and silence their political opponents.
“Clearly, the 1969 referendum result was, and was intended to be, a licence for easily changing the Constitution, and everything else government wants, in the direction of further consolidating and concentrating power in the presidency, including imposing proscribing all opposition parties and imposing a one-party state and continuing with the colonial practice of detaining non-conformists. Indeed, before and since then, post-colonial governments have been ‘preoccupied with how to win and retain power, overriding the need for due sense of balanced and restraint.’ Thus, the post-colonial nation-state has not only been inappropriate, but also much abused, at the cost to civil and human rights and there have been no sacred cows.”
The lawyers who were representing the petitioners, i.e., Messrs. Hakainde Hichilema (HH) and Geofrey Bwalya Mwamba (GBM) were: John Sangwa, Robert Simeza, Musa Mwenye, Jack Mwiimbu, Nelly Mutti, Mwangala Zaloumis, Keith Mweemba, Majo Muchende, Mulambo Haimbe, Martha Mushipe, Chad Muleza, Vincent Malambo and Gilbert Phiri.
The lawyers who represented the first and second respondents i.e., Mr. Edgar C. Lungu and Mrs. Inonge Wina were: Bonaventure Mutale SC., Professor Patrick Mvunga SC., Erick Silwamba SC, Sakwiba Sikota SC., Dickson Jere, Joseph Jalasi, Lubinda Linyama, Major Akokwa Lisita, Newton Mubonda, Chewe Bwalya and Noel Simwanza.
The lawyer from the third respondent, The Electoral Commission of Zambia: Mrs. Ngombo Mulenga (in house lawyer), Abyndi Shonga SC., and Steven Lungu. And the fourth respondent, Attorney General: Likando Kalaluka SC., Abraham Mwansa SC., Martin Lukwasa, and Francis Mwale.
And since this was supposed to be the most highly profiled case in the newly established legal institution (i.e., the Constitutional Court), and from which we had expected mental-cracking arguments from all sides, but unfortunately there is absolutely nothing recorded in the case records to point to as the greatest event in the annals of the legal system in Zambia since the petition just lapsed. And I am of the opinion that the lawyers did not effectively and adequately represent the petitioners as we had expected and anticipated.
I therefore decided to write to a man (like Mr. Colin Cunningham) ‘’who have empires in their heads,’’ Professor Michelo Hansungule, Professor of Human Rights Law, Center for Human Rights, Faculty of Law at University of Pretoria, South Africa and here is what I wrote to him:
“…anyway, I just want to find out if the Constitution Court has the right or power to change or alter any part of the Constitution. This arises from the following passage: one party stated: ‘the question of 14 days does not rise or fall on what is right or what is wrong, but rather on the decision of the majority judges at a particular time. From the 14 days decision of both the majority and the minority judges, it is clear that the decision could have gone either way. The 3-2 decision was very close.’
“And the other party had this view i.e, they claimed that by treating the constitutional 14 days’ time-frame within which to hear a presidential election as mere technicality which could be dispensed with at the convenience of the judges was both wrong and illegal.”
And Professor Hansungule wrote back and stated: ‘’Your Highness, the new Constitution creates the Constitutional Court in article 127 which it mandates to hear:
(a) A matter relating to the interpretation of this Constitution.
(b) A matter relating to a violation of or contravention of this Constitution.
(c) A matter relating to the President, Vice-President and councilors and
(d) Whether or not a matter falls within the jurisdiction of the Constitution.
Based on this, therefore, in particular paragraph (a), the Court can interpret the Constitution but only where there is ambiguity. In order to give clarity to an ambiguity, the Court can ‘interpret’ and not ‘rewrite’ the relevant constitutional provisions, just interpret i.e., try to give what Parliamentarians had in mind at the time they enacted the ambiguous clause.
Sir ‘interpretation’ does not mean power to ‘to change’ or ‘enact any part of the Constitution.’ No. this is the reserved domain of the legislature. The idea of going to Court for an interpretation is in order to avoid going to the politicians who enacted the law to understand what they meant because they will give us a ‘political interpretation’ or interpretation according to the ruling party members which may not be in accord with national interests. We go to a professional interpretation of the meaning of a word or clause not easy to understand.
Having said this, Your Royal Highness, the issue of ’14 days’ did not need interpretation by either the majority or the minority in the Constitutional Court. This is not an issue which is ‘ambiguous.’ We all know the meaning of 14 days from the date of filing the petition. All lawyers and judges know that 14 days mean ’14 working days excluding weekends and holidays.’ All cases filed at the High Court are filed with that ordinary meaning in mind. Second, John Sangwa, the UPND lead Counsel raised the issue with Justice Sitali the first day they started sitting for the petition seeking to understand from the Judge how she understood 14 days to mean and she said ‘once we have started sitting for the petition, 14 days will not apply to your prejudice.’
Deducing from the fact that the issue of 14 days had been made more than clear by Judge Sitali to John Sangwa, the UPND lead Counsel on the first day of sitting in the open court, I can therefore safely take it for granted that both teams of lawyers from the petitioners and the respondents were aware what 14 days meant. And according to Professor Hansungule, Judge Sitali had stated without mincing words that ‘‘once we have started sitting for the petition, 14 days will not apply to your prejudice.’’ My Cambridge Advanced Learner’s Dictionary defines the noun ‘’prejudice’’ as ‘’an unfair and unreasonable opinion or feeling, especially when formed without enough thought or knowledge.’’
It must now be very clear from the above fore-goings that it was the Constitution Judges’ different political interpretations of the 14 days that has greatly contributed to the current constitutional crisis. And from the ’14 days’ decision of both the majority and the minority judges, it is quite surprising that the judges deliberately decided to ignore the ‘’power’’ and ‘’rigidity’’ of the Constitution. I must re-emphasize ‘’deliberately,’’ since ignorance is no defence in law.
And technically the Constitutional Court became illegal and illegitimate as soon as the judges resorted to act outside the Court’s jurisdiction as dictated by the Constitution i.e., they illegally decided to be law-makers instead of being interpreters. Let me quote Professor Hansungule again:
“Sir ‘interpretation’ does not mean power to ‘to change’ or ‘enact any part of the Constitution.’ No. this is the reserved domain of the legislature.”
And then through the Judges’ joint-political meeting, the unconstitutional 3-2 decision showed that judges Sitali-Mulenga-Mulonda majority might have had a different political leaning from that of the Chibomba-Munalula minority.
Chipasha Chipalo wrote: “The lawyers made the issue of time an issue of argument with the court……….. They should never and cannot blame the court for dismissing the petition after the expiry of the time specified by the Constitution.”
This indeed makes sad reading because there is no need for crying over spilled milk since this issue of 14 days could have been adequately dealt with by the Law Association of Zambia (LAZ) and lawyers who were on the Constitution Committee and I know of Dr. Roger Chongwe and the fact that the Technical Committee chairperson was the former Chief Justice, Judge Anniel Silungwe. This means our lawyers did not understand the implications relating to the Constitution and therefore could not later interpret our Constitution. What shame!
And let us look at another anomaly because inspite of the fact that Judge Sitali had clarified the issue of 14 days earlier, let us listen to what Perpetual Sichikwekwe reported:
‘’….Meanwhile, hearing of Mr. Hichilema’s application for an order that pending the determination of the petition, ballot papers and all other documentation used in the elections be in custody of the court again failed to take off yesterday. Lawyers from both parties arrived at the court around 0900 hours, but the hearing could not proceed because Mr. Hichilema’s lawyers had not served the documents on Mr. Lungu and Mrs. Wina. Justice Chibomba adjourned the hearing of the preliminary application on the preservation and custody of the ballot papers and other documentation to today at 1400 hours’’(Zambia Daily Mail 24th August 2016).
And the petitioners’ lawyers had not served the documents on the respondents about the fourth or fifth day into 14 days prescribed period.
And according to Troubleshooter, Chipasha Chipalo: ‘’The lawyers for the petitioners made the mistake of submitting grounds which were more speculative than factual. They also listed too many witnesses for a petition which had such a short time frame provided for the hearing. I can only guess that they did not realize the negative consequences of procrastination on the part of their clients. The originating summons was also too weak leading to applications for amendment of the petition, and yet, they had a full six days in which to prepare a firm case or advise their clients that there were no grounds for proceeding with the petition. The petitioners’ lawyers spent thirteen (13) days out of the Constitution’s prescribed fourteen (14) days filing applications instead of commencing the hearing so that they could prove their case.’’ (Daily Nation 7th September 2016)
And this simply means that there was nothing pertaining to the petition or any evidence recorded in the Constitution Court case records. And therefore the petition lapsed after 14 days. And in fact the petition never took place.
Then on Friday, 2nd September and the 14th day to close the hearing of the petition, the lawyers tactfully abandoned their clients in order for Hakainde Hichilema and Geoffrey Mwamba to plead for the unconstitutional extension of the 14 days within which the petition was to be heard. What is surprising was what made the Judges to agree to the request by the petitioners to hire new lawyers when the period had expired. And this actually means that the Judges did not understand the limits and the powers of the Constitution Court.
Andrew Ntewewe, President of the Young African Leadership Initiative said, ‘’Justice Chibomba had exhibited emotion in her conduct and that it was injudicious for her to have been moved by the political pleadings of Hakainde Hichilema and Geoffrey Mwamba to unconstitutionally allow the extension of the 14 days within which the UPND petition was to be heard.’’ (Daily Nation 9th September 2016).
Chipalo wrote: ‘’I am inclined to think that the decision to dismiss the petition on Monday 5th September was a realization of the earlier mistake and pressure from the public who justifiably complained about the abrogation of the Constitution.’’ What is amazing is that if we combine the experiences of thirteen lawyers who represented the petitioners, it might total to over fifty years of legal experience and yet they decided to deceive their clients to do what was not workable.
And so having totally and absolutely failed to file applications of commencing the hearing within the prescribed 14 days so that they could prove their case, then in desperation to cover up their shame of incompetence and blind the nation on their failure to effectively and adequately represent the petitioners, they resorted to the phrase Mr. Colin Cunningham had coined to describe the desperation of failed lawyers: ‘’Fix it, till you make it.’’
When the petitioners’ lawyers realized that inspite of their numbers (i.e., 13), they had shamefully come to the end of the road they resorted to ‘’fix it till you make it’’ tactics which included unreasonable arrogance from some miscreants. Surely when they walked out of court on the 14th day and last day of the petition, were they (with their 50 + years of legal experience) really convinced that the Judges had power to change the Constitution when they misled their clients to seek to engage new lawyers! Let me once more quote Professor Hansungule again:
Sir ‘interpretation’ does not mean power to ‘to change’ or ‘enact any part of the Constitution.’ No. this is the reserved domain of the legislature.
And here is the editorial comment: ‘’Despite the court’s ruling, Mr. Hichilema and Mr. Mwamba have initiated two new actions on the same matter, same facts but before two separate courts. They have initiated another cause of action in the High Court contending that the Constitutional Court did not afford them reasonable time in which to hear their petition. (Daily Nation 9th September 2016).
Was it the Constitutional Court that did not afford them reasonable time or the contents of the Constitution itself? In fact, I always hear lawyers themselves saying, ‘’ignorance of law is no defence,’’ and how can it be a defence today? There are themselves to blame and the greatest problem in Africa is that we tend to swallow anything from the white man and hence these same lawyers were just nodding their heads to ‘’14 days’’ like tree-frogs (popularly known as blue-heads) or like automated machines.
And in this respect, Reverend Munshya wa Munshya hit the nail on the head: ‘’The law does not change quickly enough to adapt to the political realities of a democracy. No wonder, Zambia is not led by laws using people, but by people using laws.
In philosophy it is said: ‘’Never complain about what you have permitted. You have permitted your present circumstance or they would not exist. What you tolerate, you permit to exist. What you tolerate, you authorize to exist….’’
The lawyers and their mother body the Law Association of Zambia (LAZ), in their misguided efforts to be champions of white democracy neglected to watch out for evil motives of the capitalist-exploiter. The greatest problem in this country is that our ears itch for praises from the whites. Of course, no one can overlook the fact that the white man has brought a lot of good civilization to Africa, but it comes with a sly danger, because while celebrating the generous donor aid such as the distributions of free skippers and such privileges as learning and enlightenment, it can easily blind us to who we really are and come to the fatal conclusion that the white man is the measure of all things. This hypnotizing mentality has subverted the African personality like no other ideology.
These people are intellectuals and are supposed to be the conscience of our society, but unfortunately through carelessness, this nation is going through unparalleled conflict and division that could have led to tortuous and volcanic hell.
My interest in this case has just been to try and establish if a team of thirteen lawyers had effectively and adequately represented their clients and from the fore-goings, I have found that they exhibited incompetence and later resorted to deceive their clients by misleading them into unnecessary court actions.
Professor Hansungule concluded his letter to me: ‘’Please Sir, I request you tell HH and GBM not to waste time with the law on a problem like this……….. If they cannot suggest a political strategy, they can as well forget it…’’
Let us look at this issue the other way round: No product can be more powerful than the source from which it came. Thus, the quality of any product is dependent upon the quality of the components used in the product, which is dependent upon the quality of the materials used in the component. The potential of something is always related to the potential of the source from which it came. Nothing can be greater than its source.
In fact the entire issue of this long article is to prove that our Constitution was a brain-child of the capitalist-exploiter i.e., it is an imperialist-driven and definitely not the people-driven Constitution. It is general knowledge that any manufactured product has got the manufacturers’ manual to which the purchaser must refer in order to utilize such a product to the maximum efficiency. But if this useless Constitution was indeed ‘’people-driven,’’ why have we as the manufacturers totally and absolutely failed to de-code and interpret the contents of our own product?
I have always maintained that the capitalist-exploiter leads with truth but never to truth. And this imperialist-driven document was not drawn in our own interest since ‘’the potential of something is always related to the potential of the source from which it came. Nothing can be greater than its source.’’
Let me quote Professor Muna Ndulo, a US-based constitution lawyer:
‘’I think the constitution-making process in any country should be owned by the people of that country. The Constitution is context-driven; you cannot take the American Constitution, the British Constitution and whatever and say it can work in Zambia. It is not like a fridge which you can take from here and say because it operates on electricity it can work in Afghanistan or wherever. No, it has to be context-driven. We are dealing with our specific problems and we have to address those. And I am also very troubled by the fact that often, external actors have this attitude that whatever they think of is good enough for Africa. I believe we deserve the best and we shouldn’t accept that people think they can advocate things which in their own countries they would never accept…. The key to success is always the people themselves to chart their own course; the crucial issue of ownership would never really be underestimated.’’ (The Post 25th August 2015).
And deducing from the blind arguments on the ‘’14 days issue,’’ it simply means our lawyers had not the slightest idea the impact it would later make on the interpretation of the Constitution by the Constitution Judges when it was being inserted in the Constitution. I strongly believe the ‘’14 days issue’’ could have easily been managed if foreign lawyers could have been invited to beef up the local legal team.
The Legal Practitioners Ordinance, Cap 144 in the 1965 Edition of the Laws of Zambia, permitted outside lawyers to apply to the Chief Justice to be admitted as practitioners in Zambia. But unfortunately the Legal Practitioners Act 1973 which came into force on 23rd March 1973 restricted admission to the Zambia Bar and subsequent practice in Zambian courts of lawyers trained abroad.
However, we are now sadly reaping the consequences of that ban. Attorney-general, Mumba Malila said that the legal profession was in considerable disrepute. ‘’…some learned legal practitioners at ZIALE expecting to enter what is known as the noble profession have deemed it convenient to shamefully cheat their way into the profession by helping themselves to leaked examination papers..’’ (Sunday Post 28th April 2007)
High court transcript of treason case
Let me cite one example of what I am talking about: I was availed the information from the High Court’s transcripts in the treason case of Shamwana and 11 others. The trial was before Judge Chirwa J. (HP/166/1981). My interest was on accused 2, Mr. Valentine Shula Musakanya. At the High Court trial he was found guilty and sentenced to death and he was represented by two Zambian lawyers i.e., Messrs. John Mwanakatwe and Bevin Willombe. He was, however, acquitted on appeal by the Supreme Court, a British lawyer Mr. Robert Gatehouse a Queens Counsel (QC) joined the two Zambian lawyers.
My interest in the trial was that Mr. Gatehouse’s submission was what would normally appear to be an insignificant and trivial issue. It was on the notes a police superintendent took from accused 2, which were admitted by the High Court but where the QC based his arguments.
Justice Chirwa wrote: ‘’Whilst on the question of confessions, I will briefly refer to the interrogation notes taken from Mr. Valentine Musakanya, exhibit ‘P 100.’ I made it clear when delivering any ruling on the notes that they were being admitted in evidence not as a statement by Mr. Valentine Musaakanya, as they do not qualify to constitute a statement, but as notes made by the witness to remind himself of what accused 2 said i.e., to refresh his memory see Lester & howard Vs R (22). These notes were objected to by Mr. John Mwanakatwe.
At the Supreme Court were: Judge Silungwe C.J., Judge Ngulube D.C., Judge Mundo T.S., Judge Bweupe and Judge Sakala.
Here is Mr. Gatehouse’s submission: ‘’…this brings us to accused 2’s situation which is radically different from others in that here, we are faced, not with a confession statement but with interrogation notes, exhibit ‘P 100.’ There was in this case, a wrongful admission of accused 2’s interrogation notes which should never have been before the trial court. It is not in dispute that on November 2-3 1980 PW 110 interrogated accused 2 at Lilayi; whilst police personnel secretly endeavoured to maintain a hand-written record as interrogation. There was no warn and caution administered to accused 2. The notes were not read to him. The notes contained insertions as well as alterations; the notes taken and the information given were not a warn and caution statement. The notes were at that time for the assistance of PW 110….in this circumstances, the lack of caution was not an impropriety.’’
Mr. Balachandram argued on behalf of the State that the interrogation notes were admissible in evidence as they were a contemporaneous record of the information given by accused 2 to PW 110.
The Supreme Court ruling: ‘’…clearly, the interrogation notes were, to all intents and purposes, admitted in evidence and used by the trial court as if they were a substitute for a properly admitted confession. This was misdirection. Interrogation notes may at best be used only as an aide-memoire, but should not, as a matter of principle, be used as a substitute for a confession. If this were not so, the Judge’s Rules would fall away as their own inanition. The significance and purpose of interrogation notes is to aid police investigations, not to be later transformed into evidence. It would be undesirable to promote the status of interrogation notes to the status or quasistatus of a confession, since for obvious reasons, the police subsequent to the interrogation notes which according to PW 110’s evidence, had been made as aid-memoire and not for the purpose of production in court.
‘’And to the State’s submission that the interrogation notes were admissible in evidence as a contemporaneous record information supplied by accused 2 to PW 110, the learned authors of Archbold, discussing about ‘contemporaneous notes’ made by the police and not signed by the accused point out in paragraph 15- 56 (ix) that, ordinarily, such documents are no more than memory refreshing documents used by officers concerned. In our judgment, the admission (including exhibits) of the interrogation notes was in the circumstances of this case, as in R v Fenion & others (66) ‘technically incorrect’.’’
There were eleven accused persons in the original treason trial, but four were acquitted by the High Court Judge and of the remaining seven, it was only Mr. Valentine Shula Musakanya who was acquitted by the Supreme Court. And it is amazing to note how the QC on the seemingly ‘’flimsy’’ submission led to the acquittal i.e., on the police superintendent’s own interrogation notes.
The Author is a Paramount Chief of the Bemba Speaking People in Northern Province of Zambia
About Guest Digger
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