CONSTITUTIONAL lawyer John Sangwa says the status of State Counsel is not chivala mulomo and being a member of the Law Association of Zambia (LAZ) does not abolish a lawyer’s freedom of expression. The renowned lawyer adds that criticism and the freedom of expression is the backbone of any functional democracy.
“People have misunderstood what it means to be State Counsel. You are given that title in recognition of your contribution to the legal profession, that’s the grant of that title. It doesn’t mean that it becomes kavala mulomo or chivala pa kwamwa [a silencing tool], no! If that is the idea, many senior lawyers would have no problem in surrendering it, including myself. Being State Counsel is not just about billing, I think that’s a misconception. People have misunderstood it, State Counsel doesn’t mean that you are a lawyer owned by the State, no! Our allegiance is to defending the Republican Constitution, not the party in power or the sitting President,” says State Counsel Sangwa.
“I may be a member of LAZ, it doesn’t mean that I have forfeited my freedom of expression. I still have those rights and nobody, not even LAZ, can curtail those freedoms. In fact, a country is built on divergent ideas. It’s different ideas that build the country. The letters patent is not given to define you, it is given in recognition of what you have achieved. So it is not to vala mulomo; if it is, then that would be corruption. If that’s the way they perceive it, then that’s a form of corruption. To suggest that because you are State Counsel, [and] you have letters patent, then you should keep quiet, then that instrument is now given for the wrong purpose.”
Our opinion is that the learned State Counsel is absolutely right and President Lungu is wrong because there is no such existing legal framework on which the LAZ president can base his decision to gag senior members of the association from speaking out on governance issues. There is nothing demonising about eminent citizens criticising the government or indeed the Executive. As a leader, you have to encourage divergent views, and that is the strength of any functioning democracy. Democracy is the ability for people to exchange ideas, even bad ideas which you don’t like.
What is bad is insulting or telling lies. If there was any State Counsel trading in lies, we would agree with President Lungu’s displeasure, but even that, there’s already a legal framework within which those lies can be addressed. If State Counsel lies about somebody, the aggrieved person has the right to go to court and seek relief, but it’s not for LAZ to intervene.
When you say that State Counsel cannot publicly criticise the executive, from our point of view as media, we feel that is some sort of way to curtail freedom of expression. When you genuinely feel that the country is not going in the right direction, it cannot be correct to say because of your status, you cannot go on a podium like public discussion forums, a TV station, to express your concerns over national issues. Even State Counsel who support the governance style of the current Executive have not shied away from openly defending the government and party in power.
So, we think that a lawyer who understands how a democracy is supposed to operate cannot make such a demand from the new LAZ president. That can only be the thinking of a dictator who believes that people have no right to question the government. We are not living in the 17th Century. President Lungu is not a chief who can demand that people should go and kunkula before him even when they’re displeased with the leadership. Even tradition leaders nowadays are criticised by their subjects without jeopardising co-existence. You cannot contain people’s thinking.
President Lungu shouldn’t focus on who is giving him advice and what format the advice is delivered to him; he should pay more attention to the message. If it’s valid advice, it shouldn’t matter whether it’s written in a letter that is delivered quietly at State House or said during a public discussion programme on television. If you have heard that advice, it’s up to you to judge and see whether it’s valid or not. It doesn’t matter whether somebody is FDD, UPND, MMD, PAC or NAREP. What matters is the message.