Why it was illegal to suspend Nevers Mumba

An imaginary Trial

Judge: Please continue, Mr. Muhabi Lungu. For what reason and under what authority have you suspended the president of your party?

Muhabi Lungu (ML): Your Lordship, we suspended the president of the MMD due to indiscipline. We also determined that his actions were likely to bring the party into disrepute, and duly exercised our powers as the National Executive Committee to suspend him. It was particularly critical for us to maintain a good reputation as we go into the presidential by-elections.

Judge: Without getting into too much detail, what did he do? Was he drunk on duty? I have read that as one of your punishable offences.

ML: No, your Lordship. Plaintiff is not famous for drunkenness. But he violated a rule to obey senior party officials in a certain critical decision they had made that was important for the future of the party.

Judge: Can I now hear the argument from the plaintiff, who has also chosen to represent himself in this case. Why should you not be suspended if the Committee determines that you were “undisciplined,” or is it “indisciplined”?

Nevers Mumba (NM): Yes, thank you, your Lordship. Unfortunately for the defendants (Mr. Lungu and some members of the MMD National Executive Committee), they actually have no legal right to suspend me.

Judge: The NEC of your party does not have a right to suspend you? This is the first time I’m hearing something like that, but I’m curious to learn why. Are you ready to present the full argument yourself?

NM: Yes, your Lordship. The constitution says that for me to be removed from my position, it needs two-thirds of the party convention….

EL: Objection, your Lordship! Plaintiff is referring to a law about removal from office; we didn’t say that he is fired, we said he is suspended….

Judge: Mr. Lungu, I won’t allow objections at this point. Let’s hear all the arguments first peacefully, shall we?

NM: As I was saying…

Judge: No, wait. On second thoughts, what the hell. I will allow objections so that we can have much better clarity and a more lively session. Since we have only a few weeks to the elections, this will help me make a decision very quickly. Proceed for now.

NM: Thank you, your Lordship. As I was saying, the NEC does not have power to fire me; only the Party Convention can remove me from office. What this means, your Lordship, is that they do not have power to suspend me from my position either.

ML: Objection, your Lordship. I am at a loss for words to describe this line of reasoning: it’s true that we can’t fire the plaintiff from his office without going to a convention, but how does he make the leap to us not even having the power to suspend him when the constitution clearly says we can discipline any member of the party? Isn’t he a member of the party?

Judge: Sustained. Explain how you make “the leap,” plaintiff.

NM: Gladly. The NEC is using an article that gives it power to discipline “any member of the party,” as its basis for disciplining me. But among the things it is allowed to do to that “any member of the party” is expulsion from the party, which also means removing him from his position if he holds any position.

Judge: Yes?

NM: Clearly, the president of the party is not included when the constitution says the NEC can discipline or punish “any member” since we know that the NEC can not expel the president of the party. It has no power to remove him from office without a convention, therefore it has no power to expel him from the party. Otherwise, there would be no need for a party convention if they wanted to fire me. They would just expel me from the party and that would automatically mean I am fired from my presidency.

Judge: You’ve lost me a bit there with your verbal gymnastics, plaintiff. Slow down a bit. You’re saying if the NEC has power to expel any member, it should also have power to expel the president?

NM: If by “any member”, the constitution included the president, then he could also be expelled since the constitution says the NEC can expel any member. Since we know that it can not expel the president, we can infer that when it says “any member” it does not include the president of the party. He has to be first removed from his office through a convention before they can inflict any punishment of an ordinary member on him, including suspension or expulsion.

Judge: I see. I will give the defendant a chance to respond to that reasonable argument.

ML: Your Lordship, sir, as much as we appreciate the creativity of the plaintiff with respect to the constitution, we think you put it aptly when you called it “verbal gymnastics.” This impressive verbal athleticism, however, is not the correct way to interpret this law. Just because the president is protected from expulsion per se does not mean that he is also protected from suspension. It is not beyond reason to expect that the constitution gave us power to suspend him and then, in the event that he did not repent from the actions that led to his suspension, we would then proceed to fire him through the Convention.

Judge: Hm. I’m not sure. Your response, plaintiff?

NM: Your Lordship, if you look at all the disciplinary clauses of our constitution, they state that a person can only be disciplined by their superiors. Even within our committees, branches, etc, the chairmen of those committees, as their respective heads of their bodies, can not be disciplined by their committees without appealing to another committee or organ that he reports to and which he is therefore subordinate to. It is consistent to expect that the president as well, as the head of the National Executive Committee, would not be disciplined by the NEC because he is superior to it as its head; he doesn’t report to them (he only consults with them just as the Republican president does to his cabinet). Which is why his discipline and punishment was rightly left only to the Party Convention, the only body that is superior to the president when it is constituted, and the only one to which he is answerable, according to our constitution.

Judge: Interesting. Can you please cite the specific clause that indicates that chairmen of committees can only be disciplined by superior organs?

NM: Certainly. This is Appendix A of the Disciplinary Regulations 4(a). It reads:

(a) The Branch, Constituency, District Organs and Provincial Executive Committee, shall have power to initiate a disciplinary action including the suspension of any member falling within their jurisdiction from exercising the duties and holding office in the Party. Provided that power to take disciplinary action against the Chairman of a Committee above stated shall lie with the Committee, immediately superior to the Committee to which that Chairman is responsible.

Judge: Thank you. Mr. Lungu?

ML: Your Lordship, this article is very specifically talking about “Branch, District Organs and Provincial Executive Committees.” In the wisdom of the framers of this constitution, they thought it would be inappropriate for the chairman of these bodies to be punished by the committees themselves, so they said punishment would have to come from superior bodies. But if they wanted to extend this same right to the head of the NEC, they would have easily included him in that.

NM: Your Lordship, if we are talking about the “wisdom of the framers” here, I think it is only proper to demonstrate the spirit of the law by deriving it from the principle that would be most consistent with the rest of the rules. If no one else is being disciplined by the body he chairs or heads, why would the president of all people – the president himself — be the only one to be disciplined by people who report to him? And not only that, the constitution even does specifically say he can be fired only by the Party Convention, not by the NEC. Would it be consistent for the NEC to have no power to fire someone and yet have power to suspend him?

Judge: I’ve heard both sides. If there are no more arguments, I am ready to rule.

ML: Just one more comment, your Lordship, that you might want to keep in mind as you rule in your most excellent wisdom. The plaintiff has admittedly argued his case in a way that might convince some, but I would just like to note one absurdity that arises from his conclusion. If he is right that the NEC has no power to suspend the president, then the president can not be suspended by anyone at all, since even the party convention is only empowered to remove him, but not to suspend him. It seems very unusual to me to have one position in any organization that can not have any smaller kind of punishment, like suspension or warning, but it can only have the highest form of punishment inflicted on it. It goes to reason, therefore, that although the constitution leaves the power to fire the president to the party convention, the power to suspend him has to lie with the NEC, which is the next body in the hierarchy after the party convention.

Judge: You say it is unusual to have a position that can only be fired but can not be suspended by anyone?

ML: Yes, your honor. Your Lordship.

Judge: I do not see why that is unusual. In fact, it is probably what is more common with organizations and institutions. The president of the Republic of Zambia, for example, has that same privilege. He can not be suspended by anyone in his cabinet, since he is its head, but he can be impeached under extraordinary circumstances, and it would involve constituting a body that exceeds the power of the cabinet that he heads.

The job of such heads is usually assumed to be so important that it can not be allowed to be disrupted with suspensions by officers inferior to him. Besides, the offence that Mr. Mumba is alleged to have committed, by my understanding, involves “disobedience to senior party officials.” But this can not apply to him because he is in the unique position of having no “senior officials,” relative to his position as the head of the party, whom he would be required to “obey” as a subordinate.

Similarly, the Republican constitution provides that if the president has done anything so serious that it needs disciplinary action, it should be of such gravity that impeachment is the only appropriate question for response, not mere “suspension”. I do not see how the MMD constitution departs from this logic on a party level.

For this reason , and on the weight of the preceding arguments, I have no choice but to rule in favor of the plaintiff. The president of the Movement for Multiparty Democracy can not be suspended by its National Secretary, who is given power to discipline ordinary “members,” or indeed by the National Executive Committee which the president heads. The only punishment listed for him is dismissal by two-thirds vote of the party convention, and the particular offenses for him are separately listed from the punishable offenses listed for other members, which confirms that his disciplinary issues are to be treated as special and separately from that of “any member” referred in other parts of the constitution.

I should also mention that, even if we assumed that you had power to suspend your president, I find it odd that the president was abruptly announced to be suspended on the first day of his “offense,” apparently without the mandatory ten days period required for a response that is constitutionally granted for ordinary members of your party before they can be suspended. The totality of the evidence points to something more malicious than the picture presented by the defendant.

I therefore find the defendant guilty of misapplying the power granted to his elected office and recommend commencement of disciplinary measures against him and his co-defendants if the president so deems fitting.

REFERENCES

MMD Constitution Article 19 (l) The NEC shall have the following functions and powers:

to have the power to suspend any member of the Party for serious misconduct or violation of the Constitution;

…(n) to deal with disciplinary matters of all members for serious misconduct or violation of the constitution and where necessary expel any member from the party

Article 40 (2) The President of the Party may be removed from the Presidency by secret vote of two-thirds majority of the Party Convention …

Appendice A 8(3) After the expiry of ten days given to the accused, the Disciplinary Organ concerned shall sit to consider the exculpatory statement, if any, made and
may decide:-
(a) Not to proceeded with a case against the member.
(b) Impose any punishment in accordance with the Constitution and these Regulations as it consider reasonable.

By Chanda Chisala