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President’s interference in Judiciary angers governance stakeholdersBy Mirriam Chabala on 13 Sep 2018
Law Association of Zambia (LAZ) president Eddie Mwitwa has warned Zambians to be careful with the people they
elect as their representatives to the National Assembly if they want to have good laws in place.
And governance stakeholders, during the public discussion forum organised by News Diggers! in partnership with OSISA, expressed outrage at the continued interference of the Judiciary by State House and the Republican President.
Meanwhile, emotions flew high when some members of the audience expressed displeasure over PF deputy media director Antonio Mwanza’s presence at the high table.
Responding to questions after delivering a keynote speech, Mwitwa observed that problematic laws could only be amended by the National Assembly, hence the need for citizens to be careful whom they voted for.
“As Zambians, we must constantly recall and act on our resolve to uphold the principle of democracy and good governance, that will ensure our values relating to family, morality, patriotism and justice are maintained and that all functions of the state are performed in our common interest. As a people, we also have the power to provide checks and balances over our government and elected representatives through the ballot. That is why it is important for us to choose representatives that are able to selflessly protect our interests as members of parliament and that is one of the greatest powers and privileges the constitution has given to the citizens of this great nation. As citizens, we need to do our part in promoting separation of powers by claiming our rights and demanding good governance. In Article two, the constitution stipulates that every person has the right and duty to defend the constitution, this duty is not a preserve of the lawyers or the judges, it is a duty of every citizen through our representatives as inhabitants of our God-given nation,” Mwitwa said.
Siwale questions the legality of the ConCourt
New Labour Party (NLP) leader Fresher Siwale was among those who rose to add his voice to the discussion, charging that the Constitutional Court bench was in breach of the constitution on account that they did not qualify to be in that position.
“Mr President, in your discussion, you have alluded to Article 2 of the Constitution. But it is a duty and right of every citizen to defend the Constitution of the Republic of Zambia. Also, the law states that ‘every citizen must resist any manipulation of the law’. Now the question I have for you and the law fraternity is that in its current form, is the Constitutional Court a competent body of jurisdiction? Why I say so is that Article 141 of the Constitution of the Republic of Zambia is very clear on the qualification of judges and it clearly states ‘15 years experience in practice of Constitutional Law and Human Rights’. And all the judges on the bench of the Constitutional Court do not meet this minimum requirement of the Constitution. What it means is that all the judges have breached Article 141 of the Constitution. The law is very clear, a person who breaches any Article of the Constitution overthrows the entire Constitution. Now, if all the judges of the Constitutional Court have overthrown the Constitution of the Republic of Zambia, which Constitution are they interpretation?” Siwale asked.
In response, Mwitwa noted that Siwale had accurately quoted the Constitution with regards to the qualification of ConCourt judges but hastened to add that he could neither confirm or disagree with the allegation that the current bench was in breach of the law.
“The qualifications of the judges of the Constitutional Court, unfortunately this is a matter that we were consulted on by Parliament and made our submissions and I am precluded from divulging our position here. But I think you will recall, Mr Siwale, that one of our members, State Counsel John Sangwa did express the same misgivings that you have expressed, he wrote to the Republican President and I think his letter was circulated to the public. But the appointments were done and from what I read in the Constitution, you unfortunately cannot remove the judges of the Constitutional Court on any grounds, other than the ones that have been stated (i.e a judge must either be mentally or physically misfit) and it’s not me stating, it’s the Constitution. And the other unfortunate part is that when judges are appointed, we are stuck with them until they turn 65 years and choose to retire or they go on up to 70 years. So the judges that were appointed…,” Mwitwa explained as Siwale chipped-in, asking the LAZ president; “Mr President, are you confirming that they were appointed outside the law?”
But Mwitwa responded in the negative.
“That is not what I am saying Sir,” Mwitwa said.
Siwale was in the process of interjecting when moderator Kwenda Pipe guided him to allow Mwitwa to express his views without interruption.
“Mr Siwale, I have read the Article and I do agree with you that what you said is what it says. But the question of whether or not the judges were appointed outside of the law, that is not for me to say unfortunately. But I agree with the difficulty that you have expressed because… and this is a difficulty we have with our Constitution, we have a Constitutional Court which is a final court. It is a court of original and final jurisdiction. So if you go to the Constitutional Court today and it says something on a matter, you’ve got nowhere else to go, you cannot appeal and the situation you have alluded to, if you are going to challenge a constitutionality of the appointment of a judge of the Constitutional Court, which court are you going to go to? You probably have to go to the same Constitutional Court. So the only thing I have to say Mr Siwale is that that’s a matter the courts have to determine themselves,” Mwitwa explained.
Lawyer wonders why LAZ can’t challenge Attorney General over U-turn on ministers’ stay in office
A Lusaka lawyer, McQueen Zaza asked Mwitwa to explain if he felt there was any integrity in Attorney General Likando Kaluka’s position regarding the court case involving the illegal stay of ministers in office after the dissolution of Parliament.
This was a follow-up question to People’s Party leader Mike Mulongoti who had asked how important issues to do with integrity, morality and ethics were in the legal profession.
“In the law profession, is the issue of integrity, morality and ethics important? We have seen the chief government advisor, the Attorney General give advice to the government on a position and later on he somersaults to go on the other side to defend. Is integrity and morality important in the legal fraternity? As Chairman of LAZ, I would want you to guide me and help me to understand why you are silent over the conduct of the chief legal advisor to the government who advised the ministers to vacate offices when Parliament was dissolved and then later on when they went to court, he went to defend the same, that’s conflict of interest,” Mulongoti asked.
But because it appeared Mwitwa did not understand Mulongoti’s question from his response, Zaza interjected and challenged Mwitwa to explain why LAZ was scared of taking the matter to court.
“The point is not you taking the matter to court, it’s the opinion he gave government. That opinion was given to the public and I am part of the public. The Attorney General went and said the ministers were not supposed to continue being office, you cannot now go and start defending the same people, that was wrong. That’s just the thing. And I have engaged several lawyers in LAZ that they should take up this matter but they are scared, I don’t know why we are scared. He’s just a lawyer, yes he’s the leader of the Bar but he’s just a lawyer. The thing is that he was wrong, he was supposed to leave that matter to the Solicitor General because he had already given an opinion. We are not saying that he’s going to lose or win that’s not our point. But him even going to insist that the ministers should not pay when he had given an opinion, that was wrong. That’s my personal position, he was wrong,” said Zaza.
In response, Mwitwa encouraged Zaza to take up the matter with the courts.
“Wow, I can only say I respect my young brother’s view on the matter and I am encouraged that we have courageous young men like him. If he intends to take up that matter to court, the courts will decide but like I said, Mr Mulongi has given us food for thought and I am grateful for that,” Mwitwa said.
We’re being governed by the PF constitution – Dr Hamalengwa
Zambia Open University acting Dean of School of Law Dr Munyonzwe Hamalengwa asked Mwitwa to explain if at all his institution had ever challenged the constitutionality of the country’s governance, charging that the PF was ruling the country using the party’s constitution instead of the country’s.
Dr Hamalengwa also noted that the PF had been dismissing civil servants and retiring others in national interest on tribal lines.
“I have read the Constitution of Zambia, it appears that we are running government by the PF constitution. Mr Mwitwa has LAZ ever decided to challenge the constitutionality of our governance because we are not governed by the Constitution of Zambia?” Dr Hamalengwa asked.
In response, Mwitwa asked Dr Hamalengwa to specify which provisions of the PF constitution he felt were being used to govern the country.
“Thank you Doc, I must confess that I have not read the PF Constitution and because I have not read it, I can neither deny nor confirm what you have said. But what I would request perhaps for you to do Dr is maybe to highlight the provision of the PF constitution that the government is using as opposed to the constitutional provision as contained in Cap one. I think if we are specific, it would be easy to address these concerns. So I would invite you back if you don’t mind to specify which provisions of the PF constitution the government is relying upon as opposed to the constitutional provisions of the Republic,” Mwitwa requested.
Dr Hamalengwa oblidged and gave examples to substantiate his concerns.
“The first example I can give you is the appointment process. The PF constitution specifically says that it will only appoint members of the party. Now it basically means that the judiciary and other members who are appointed to any position must be members of the party, that’s a clear violation of the constitution and it’s not good governance because the constitution provides for good governance. If you only appoint cadres and party members to the judiciary, then that’s not good governance. It’s clear violation of the constitution. We know and I can confirm that as we are speaking right now, many people are being displaced from the civil service because of their tribe. That’s contrary to the preamble of the Constitution where there should be no discrimination. It’s a proven fact that in the civil service, some members of the Zambian community, citizens are being displaced. Whereas the preamble talks about equality, no discrimination on the basis of race, tribe, ethnic origin and other grounds but the displacement of the civil service from the Office of the President is discrimination and it’s totally unconstitutional,” said Dr Hamalengwa.
In response, Mwitwa encouraged him to challenge the matter in court if he had evidence that the current regime was displacing people based on tribe.
He said it was important for people to exercise their rights to be heard in court as opposed to making allegations without taking any action.
“I think the issue that Dr Hamalengwa has brought is a serious one and my response to the first question as to whether we as LAZ have challenged the governance of our nation through the PF constitution, my answer is no. That is not something we have done and part of the reason is because, like I said I haven’t read the PF constitution, but I have read the Republican Constitution and what I said in my presentation was that we as citizens have a duty to defend and protect this Constitution. So if there is any evidence that we have that this is happening, the Constitutional Court is available to handle such grievances and our appeal as the Law Association of Zambia is that we need to desist from making allegations and leaving them there. We must take these matter up with the courts, it doesn’t help for us to complain without exercising our right to be heard by the courts, let’s test this constitution and let’s test our courts,” Mwitwa said.
Antonio’s presence at high table causes outrage
News Diggers invited Mwanza to sit at the high table with Mwitwa in place of Northern Province Minister Brian Mundubile who is also chairperson for legal affairs in the PF Central Committee, who did not make it for the event; but some of the members of the audience did not take kindly to this decision, wondering why a party cadre was also addressing them.
Mulongoti said it was not right that Mwanza was also at the high table.
“With due respect, please understand, I have nothing against Mr Mwanza he is my colleague. But I do not expect him to sit there in front when I was expecting to see the people from the legal fraternity to talk to us. In all fairness, please let’s not do this. In PF, there are ministers and all those other positions, but how can you just bring a party cadre here? No thank you!” complained Mulongoti.
News Diggers Editor-In-Chief Joseph Mwenda then explained why Mwanza had been invited to take the front seat.
“I would like to state that we are the ones who invited Mr Antonio Mwanza to come, he came as a member of the audience but we had actually passed on an invitation, through him, to the Patriotic Front Chairperson for legal committee (Brain Mundubile), we also extended an invitation to the Minister of Justice and other government officials. However, they were unable to come. But we thought that seeing Mr Mwanza here, he could actually be able to respond to some of the questions, other than having a one-way traffic situation. And please, this an open discussion forum, it’s not a press conference for the Law Association of Zambia to give their opinions, we would like to hear the views of other participants as well. The only thing we could appreciate is if honourable Mulongoti would like to also be on the high table, we would be very glad to have him on the high table. We have more chairs here, it really doesn’t matter where Mr Mwanza is seated, he was still going to be allowed to express himself even if he had sat in the audience. But he is here to represent honourable Brain Mundubile, so please just tolerate him for the evening,” said Mwenda.
Felix Mutati’s MMD national secretary Raphael Nakacinda also expressed his displeasure, advising News Diggers to be more sensitive on the choice of panelists.
“I would like to first commend News Diggers for having these public discussion forums and giving us an opportunity to discuss national matters. But I think it is important for you to take note of the observations made,” said Nakacinda.
Later during the discussion, Lusaka lawyer McQueen Zaza observed that people were only apprehensive about Mwanza’s presence because the PF had adopted the PIG (Party and Its Government) model of governance.
“It is very unfair for this forum to remove Antonio Mwanza from being a member of the public, he is also a member of the public. Therefore, he has the right to air his views. Whether those views are attributed to PF or not, those are his views. The problem I think we are having in this country is that the issue that is called the PIG. That is what is making people apprehensive. You can’t be having people like Amos Chanda explaining policy. That guy called, what is his name, the boss to Antonio Mwanza, explaining policy. We can’t have that! That is what is making people apprehensive. Otherwise, there is nothing wrong with Antonio Mwanza expressing his views,” said Zaza.
Mwanza then thanked News Diggers! for inviting him, ceased the opportunity to defend the PIG concept.
“I want to respond to the issue of the PIG (Party and its Government) because I am one of the people who have been told that we are not supposed to talk about any policy because we are not policy experts, because we don’t belong to government, we belong to the party PF. But I want to remind the audience that the government that you have a PF government made by the PF political party, implementing PF policies as outlined in our 2016-2021 manifesto. We are the ones that make the policies, the people that sit in Cabinet are PF members appointed by a PF President sitting as a Republican Head. All the civil servants, it doesn’t matter your degrees, you are there to make sure that you implement the policies of the government of the day, which is the Patriotic Front government. So it must be made very clear that there is no conflict of interest and we have the interest to sit hear and deal with matters to do with government because we are the government of the Republic of Zambia,” said Mwanza.
Antonio explains why Lungu signed constitution with closed eyes
Lusaka resident Grace Shankaya submitted that the reason why there were too many lacunas in the Constitution was that President Edgar Lungu signed it with closed eyes.
“My concern is on the current Constitution of Zambia, I remember when it was being signed by his Excellency the President at the grand ceremony, he said that he was signing that document with closed eyes, [but] isn’t it any wonder that we are having so many issues arising from the Constitution? It’s because of the closed eyes that were used during the signing of that Constitution of ours?” asked Shankaya.
But Antonio Mwanza stunned the audience with his explanation as to why the Head of State said he was signing the document with closed eyes.
“Ma’am, you raised the issue of signing the Constitution with closed eyes. If you go to the Supreme Court now, you are going to find a statue of a woman whose eyes are closed. It’s a provable wisdom that the law should never have eyes. And when the President is accenting to the law, he has to accent to the law with closed eyes because he’s not going to accent to the law according to his views, his feelings and his opinions or as an individual. But he has to do it on behalf of the people of Zambia and he shouldn’t have feelings about it because it’s not a love affair, it’s the issue of the constitutional matter and his opinion does not matter, Zikomo kwambili (thank you very much),” said Mwanza.
About Mirriam Chabala
Mirriam Chabala is a Zambian journalist who covers current affairs and writes in-depth feature articles on social issues.
Email: mirriam [at] diggers [dot] news
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