By Elias Munshya wa Munshya
A Mr. Milton Phiri, who is described as a former ambassador in the Chiluba regime has written the Chief Justice of Zambia alleging that President Rupiah Banda breached the provisions of Article 34 (3) (b) when he claimed that both his parents were citizens of Zambia by birth or descent. Mr. Phiri claims that Rupiah Banda’s father, Mr. Bwezani Banda, Snr. was born in Nyasaland. He then came to Northern Rhodesian town of Fort Jameson (now Chipata) in the 1930s to work at a farm there. From Chipata he moved to Gwanda (Rhodesia) where he sired several children including Rupiah Banda. Mr. Banda Snr. then returned to Nyasaland in 1962. However, between 1963 and 1964, Mr. Bwezani Banda came back to Fort Jameson where he settled until his death.
Assuming that these facts were correct as presented by Mr. Milton Phiri, I will argue that the relevant laws currently applicable in Zambia do not rob Mr Bwezani Banda Snr of Zambian citizenship by birth or descent. The relevant laws to help in this interpretation is Article 34 itself as interpreted in the Supreme Court cases of Lewanika and Others v Chiluba, Zambia Democratic Congress v Attorney General, and Mushota and Katyoka v Kaunda. I will attempt to show that Mr. Milton Phiri’s interpretation of Article 34 is flawed.
Article 34 (3) (b) of the Constitution of Zambia, reads: A person shall be qualified to be a candidate for election as President if “… both his parents are Zambians by birth or descent…” The electoral laws of Zambia do require that every presidential candidate file an affidavit with the returning officer attesting compliance with these provisions. All presidential candidates, since 1996, have had to swear this affidavit. These candidates would include: Chiluba, Mung’omba, Mwanawasa, Sata, and Mumba among others.
While it is true, as held by Mr Phiri, that the constitution is the supreme law of the land, the courts of law have the competence to interpret it. It is also true that the courts of law cannot strike down the constitution. They can only provide an interpretation of the contentious issues found in the constitution. As such, unlike secondary legislation, which can be struck down by the High Court, constitutional provisions are sacrosanct. They can only be repealed by the people through parliament.
It is prudent when reading laws that after you have read a law or a constitutional article, you must ask yourself whether there is any relevant case law that has expanded or interpreted the meaning of the said law. In this case then, we must ask ourselves whether there is case law in existence that has interpreted the said Article 34 (3) (b). The rule of stare decisis states that where the courts have ruled on a matter, that ruling must stand and it must be followed in the subsequent cases, unless the new case can be distinguished from the original case.
It was in the case of Lewanika and others v Chiluba where the Supreme Court interpreted Article 34 (3) (b). The case of Lewanika and Others v Chiluba, was a presidential election petition in which the petitioners challenged the election of one Frederick Chiluba as president of the Republic of Zambia in 1996. They presented several grounds for the petition. One ground that is relevant to this article concerned their argument that Chiluba, did not satisfy Article 34 (3) (b) of the constitution since both his parents were not citizens of Zambia by birth or descent. They argued that Chiluba’s parent may have been a Mr. Kafupi who they claimed was a Congolese citizen at the time of Chiluba’s birth and that Chiluba was himself born at Chibambo CMML Mission Hospital in the Congo. They also argued that Chiluba’s parentage was at most questionable and as such did not satisfy the said constitutional provision.
In its ruling, the Supreme Court proffered the most far reaching interpretation of citizenship for those who were born before Zambia’s independence in 1964. First, the Supreme Court held that there were “no persons known as citizens of Zambia prior to 24th October, 1964.” What the Supreme Court did here is that Article 34 cannot be sued to demand that people like Mr. Bwezani Banda Snr, Reverend David Kaunda or even Kafupi Chabala be Zambian citizens. This provision of the law would only apply to those to whom it applies: that is citizens of a definite republic of Zambia after 1964.
Secondly, it does not matter where these old people were born. If they had enjoyed protection under the British Crown as people belonging to Northern Rhodesia, they became citizens of Zambia at independence. The question, therefore, would be did Mr. Bwezani Banda Snr belong to Northern Rhodesia? Since he lived in Northern Rhodesia, then the answer would be yes he belonged here. It does not matter that he was born in Nyasaland or was born in Congo as the case was with Mr. Chabala Kafupi. According to Mr. Phiri’s own account Mr. Bwezani Banda Snr lived in Northern Rhodesia for a number of years and in fact settled in Chipata from 1963. In the case of Mushota and Katyoka v Kaunda, the Supreme Court again ruled on the matter. It did not matter that Kaunda’s father was born in Malawi nor that Kaunda himself was born in Malawi, if he was ordinarily resident in Zambia and belonged to Northern Rhodesia then he qualified as citizen.
Thirdly, the Supreme Court in interpreting Article 34 even went further to declare in the words of Justice Ngulube that even an ethnically Chinese baby adopted by a person who belonged to Northern Rhodesia would satisfy the requirements of Article 34. From the judgment: “…the provision would not disqualify for example a person born in Northern Rhodesia or in present day Zambia 35 years ago of Chinese parents (say who died) who has since been adopted by Zambian parents who are Zambian by birth or by decent.”
Fourthly, the Supreme Court then held that the expectation that for a person to qualify under Article 34 they ought to be indigenous to Zambia is just not in the constitution. Article 34 does not say so. Judge Ngulube continued, “We doubt if the framers of the amendments had these problems in mind. If the aim was to provide for indigenous presidents only as suggested by counsel, then quite clearly the language of the amendments actually employed did not and could not achieve this.”
This, therefore, brings us to the obvious question, what did Chiluba and his cohorts want to achieve when they introduced these amendments? Wasn’t it their motive to deny Kenneth Kaunda the right to stand as presidential candidate? This presents the greatest paradox in law. When judges interpret legislation they do not go to the motives of the framers of the law. Judges are not mind readers. They cannot discern what were Chiluba and his parliament’s motive. They can only interpret written intent. Intent in judicial interpretation is never identical to motives. Regardless of what the motives were, the judges interpreted intent of the constitutional amendment following the literal rule. And so, if Chiluba and his parliament had the motive to disqualify Kaunda, the courts did not read those motives at all. As such, by the ruling of the court Kaunda could stand as president and so can anyone from places like China or India.
Mr. Milton Phiri’s act of writing to the Chief Justice instead of commencing legal proceedings against Rupiah Bwezani Banda just goes to show that it is not law that he is interested in. Rather, it is politics. And we have seen the politics of citizenship played against many leaders. It was played against Kaunda (Malawi), then against Chiluba (Congo and Mozambique), and then against Sata (Tanzania) and the latest victim is Rupiah. Zambia must put to rest its ghosts that keep haunting us concerning citizenship.
If it is a game of politics, Milton Phiri is welcome to play. But if it is a game of law, he has already lost the battle.
Pabwatooooooooooooooooooooooo
A lot of this these questions are simply subject to interpretation and construal …..!!
Niziiiiiiiiiii…………..!!! Donci kubeebaa………………!!!
I am not a lawyer and I would not want to be one even in after life. There is a lot of hocus pocus. Why was KK not allowed to stand if not because of the clause introduced by FTJ? How can there be relevant cases with a new law? A poor person steals and is jailed immediately whereas rich people’s cases drag on and some are even jailed in hospitals and you are talking about the sacrosact of law.
So how are you as government going to deal with dual citizenship if today you are saying if one is born in Zambia they are Zambians for life. When is one a Zambian national, Zambian citizen and so forth? If nationality for Mr Banda doesn’t matter, then why does government beat up Zambians living abroad with their dual citizenship. In Europe and elsewhere one cannot lose their heritage nor their roots. Once born in that country your are part of that country no matter where one resides.
Dual nationality for ALL
Soldier Blue is the typical PF cadre. Has no time to read but just voice support for PF. I am inclined to agree with Elias that Phiri has already lost the war
Pabwatooooooooooooooooooo chee colour !
Elias , great piece as usual. I hope all the hired guns with their tabloid toilet papers read this , including the PF Kaponyas.
This is preciselt what incest me, all the above comments mean nothing, above me. Just people wanting to get in the lime light seeking attention, probably dull, have no jobs and live a sad life. Could you please contribute to the article and not yap whatever comes out of your little minds. I am sick and tired of people not reading the article and yet expose their ignorance with stupid and silly comments. Emulate Nine chale, myself, Bootlicker etc. Grow up you are an embarrasment to human race. Change or some of us will leave Lusaka Times. Thanks
Leave b!tch and no one will miss your smelly c**nt
The blogging family will not and never miss you. Leave!!!!!!!!!!!!!
“Zimya basobe mau”!!! look at this,all they can say is leave the blog instead of defending themselves LMFBAO.
Incest? Mushota, I hope you are not thinking what I think you’re thinking. Sicko!
Here is one for you.. technically speaking no one can claim to be Zambian before 1964 and no country by that name existed before that specific date, we had four British colonies and protectorates namely, Nyasa land, Noth and South Rhodesia and Barotseland, no specific clause has been enshrined in the constitution deal with this hence the field day these lawyers are having. In my opinion rather leave it as it is we have children born out outside of Zambia who knows they may want to run for political office one day.
good research actually i want RB to stand and lose hands down so that people learn to respect the voters. iam sure he is zambian but as a zambian i have the right to vote one SATA this year. whether its against RB or someone else that does not matter to me
leave lusaka times!!!!
#8 Mushota you are the worst culprit of writing nosense on LT nowadays, unless you change your approach, credible bloggers like Nine Chale will surely leave LT no sooner than later. Good Article ba Munsha
Mr. Milton Phiri has a twisted bone to chew. RB has been a prominent politician in the UNIP Govt and thereafter when Milton Phiri was Ambassador under Chiluba’s Govt. How best will Mr. Phiri fight his case when the former President KK worked with RB & Chiluba is currently supporting RB under the MMD? Phiri is simply childish or displaying his mental disorder. It is interesting to speculate what Milton Phiri has in stock for Guy Scott and Simon Ber Zukas. He has lost this particular legal battle and must raise adequate money to foot the legal fees.
Totally agree with you. But Phiri was never an Ambassador but High Commissioner in both Botswana and Malawi, both countries being members of the British Commonwealth or former colonies of the UK.
chief bootlicker, if thats real you in the picture, am ashamed of and so are your children if at all you have any. at your age one is expected to be just and use good language.
This is a great article, but it does not answer the questions of citizenship.
In our constitution, there is three forms of citizenship
1. Citizen by birth
2. Citizen by decent
3. Citizen by naturalization
When the judges play semantics with the words in our constitutions, the ultimate sufferers are not the foreigners or the lawyers, but ordinary citizens who know what they want. The constitution being discussed here is not silent on the issues, but openly and categorically states that both parents be born in Zambia. If Zambia never exited, what did? Zambia did exist, but with a different name-Northern Rhodesia. If we had wanted, we would have kept that name. Would that have meant something to these judges? So, if Derick Chitala committed a crime when he was Derick, now Mbita,
Zambia makes me proud; I know there is a concession of what the whites
Have done for you, and I think you appreciate it but do not realise or pretend not to
You have named cities after most greats Britons eg Livingstone, Colleges (Evelyn Hone) Stadiums Arthur Davies, etc.
But you are scared of naming for instance this new Hospital Frederick Chiluba Hospital, or Rupiah Banda Market. Mwanawasa town etc why? Do you realise how luck this country is to have Chiluba , Banda etc. These Men are I cons whose names will live forever and your grandchildren will demand to be educated 200 years from now, people will be privileged to know Chiluba and here we are belittling the man why? Why not Kalushs Bwalya Mall. Instead of ‘Manda Hill’. .
#14 Kalos2121
You have missed the point on what the author is putting across. Countries are not defined by names, but by the constitution. The Zambian constitution is not the same as the Northern Rhodesian constitution. And the author has gone to great length to tell you who become Zambian citizens according to the Zambian constitution of 1963/4 and you seem to deliberately ignore that. This debate is not about names of a country. It is about the constitution and that is what sets the path for all that follows. The constitution is supreme and the law’s job is interpret that.
Can you reason with me, It’s not because of Masters I am telling you this, It’s because
You and I are lucky to be talking about the current President, I have met Chiluba and It is the proudest moment in my life ( I am only 27 years old) We are lucky to have Mr Sata, Mr Chiluba etc, I know some of you are probably saying Mushota whats your point? Well my point is, stop belittling these people, address them as they deserve to, i.e. Dr Chiluba , Mr Sata etc It is common sense. I don’t like Zambia and I sincerely wish I was born white and British but I respect these people I feel like crying. Thanks
I think you have a problem. I will never call chiluba Dr. Some of us with PhDs deserve to be called Dr not ka Chiluba. Mandela has over 10 Honarary PhDs and you will never hear him call himself Dr. Even Obama, its the same thing. Now people who don’t derseve the title are ones in the forefront calling themselves Dr. Probably we should give their names to toilets eg. Chiluba Town Market Toilet, Bwezani Chiwempala toilet, etc.
Ka Mushota u need to be Facked, U don’t like Zambia uli kapuba, tabalaba eko wafuma, home seet home mind you will still come back to Zambia tho U don’t like it. U sincerely wish u were born white or british? pipo like u & MJ are an embarassment to the black race, just die if you don’t like been black you full. (word sencor)
Mushota is either white or mixed race and playing mind games. whta a show
I PITY YOU girl, you are either a racist or you are in serious need of psychological help or worse still both. people like you should not have been born you are a classic waste of flesh and blood. Learn to see beyond skin pigmentation. You are in Europe because those guys went through the middle ages, you are married t a white man because he saw beyond your skin colour. YOU ARE TRULLY PATHETIC. there is positive and negative racism unfortunately yours is both.
would the case be thrown away on the basis of the name change? Congo (DRC) was once Zaire, what implication does that have on the citizenship of her people?
Going back to the issue of birth, the parents or a parent of RB was not born in Zambia period. Whether Northern Rhodesia or Zambesia, or Mosi-o-tunya, it still is Zambia. One question that comes up is the interpretation itself. Can it be flawed? 100% yes. Is it full-proof? Not at all. So, if we took the same judges and brought an ordinary citizen to interpret the same law, the judgment and interpretation might be different, WHY? So, this is not what the constitution intended, but human nature twists it to satisfy who they perceive as friend and hurt those they regard as adversaries. That is the nature of the beast. Us humans.
Great comment my man,…
Kalos #18, don’t let hatred for RB blind you. Are you sure RB’s parents were not Zambian born. Do understand that if you read the whole judgement, you will notice that one of the problems identified by the judges was that they had to depend on hearsay from both the defence and the prosecution about the parentage of Chiluba – especially the father. And they failed to prove on that for both sides because there was no record. Can Milton Phiri, or you or someone definitely produce the evidence? Then someone will also provide evidence about some supposed Tanzanian parentage :-). Just let RB stand and lose hands down, why are PF so afraid of losing to RB?
The same constitution asked for people to declare citizenship. How many did and how many didn’t? The sadness about this case is that, if this was about Michael Chilufya Sata, the same people like you Bootlicker, will be singing this day in and out that Sata cannot stand for elections. Just a few months ago, you cadres were up in arms about Degrees, you sang and danced and threw gee in fire to have Sata not contesting. Next was crimes committed in the same Northern Rhodesia by Sata, what did you want? Not for him to contest. Now the pendulum has swung your way, RB is not legitimate to contest. New interpretations are being thrown left right and center.
Good article, bainzi baitaya as usual, milton is unrepentant fellow who needs to be flogged mukanwa
Munshya wa Munshya is Congolese so understanding of English is a problem to him. How do you expect your small newspaper to grow and compete with big brother POST NEWSPAPER when you are pepertrating MMD insincere tactics, which are irritating people in the morning, afternoon and evening! If this law barred Kaunda from standing, it must also bar Bwezani Banda, as for him he has to answer charges for having cheated in 2008 nominations! He violated the Zambian constitution.
#19, probably you have not been long enough on this blog or you have just sprung up from under some rock. Which party has been advocating for illegitimatizing the other from contesting? MMD or PF? What are talking about? Thousands that read Zambian news and even visit this blog are laughing at your statement knowing what Sata has had to endure the past few years just to contest the next presidential elections. RB had to personally through Kunda and HH insert clauses in the failed constitution personally targeting Sata in the constitution. It has failed.
Elias Wa Munshya is a spent force, no substance but just licking from the toes. your article is total senseless and MMD Chief Bootlicker- you are a total shame to society
There are some valid legal points in the article obviously written by a sympathizer of Banda and MMD. Phiri too has laid down serious arguments so let the debate go on however,it would not be in anyone’s interest if Banda is barred from standing,we want him to stand so that he goes the way Kaunda went.
It is very clear that the MMD party has a very good manifesto with realistic targets but it’s the people at the helm of MMD’s power that are rotten that’s why it’s time that we have change now even just for the heck of it as power has gotten to some chaps’ big heads so it will be so nice to see Banda stand this year and see him fall then get prosecuted for looting our national resources,i also look forward to Chiluba finally paying for his sins. Be it HH or Sata,change is needed!
By this article, it appears that anyone born before 1964 in Nyasaland, Northern and Southern Rodesia could have claimed to be Zambian. I would have thought Northern Rodesia adopted Zambians and Nyasaland adopted Malawians. People had ID cards then and by virtue of birth Pupiah’s father if a became a Zambian he did so fraudulently. He should have become Malawian through his birth right in Nyasaland. RB therefore does not qualify to be a Zambian president
ba kalos2121, let me remind you of what i have always said. if pf accuses anyone of wrongdoing (be it theft, corruption, rigging, lust for power, cheating, deception, bribery, brown envelopes, dictatorship, third term, you name any vice), they cannot be innocent themselves. what @19 is advisng you is that it would be a sheer waste of time to try and prove citizenship of the old people in zambia because all the information that is available on old folk is hearsay at best, and political chicanery at worst along the same lines as the 90 days theorem. by the way why don’t we let our parents rest in peace? can’t we fight our own political battles without dragging our parents into it?
@22 ba kalos2121 please spare us the hallucination. who told you that rb wanted to insert the degree clause in the constitution amendment? i actually had the opposite view that maybe rb caused the removal of that clause, he is such a gentleman.
No.23 Commando
Before you shoot down an article, read it and then come up with reasons as to why you think the article is useless. I know you are entitled to an opinion, but if your intention is to communicate to other bloggers, you need to substantiate your claims. UNLESS YOU ARE PF and cant read and understand or articulate issues MUCHIZUNGU?
# 27, pf whatever. Are you still under that rock? I thought you came out. Who does not know that RB and Kunda were the engineers of the Degree clause that blew up in their faces? Yes, I will spare you your hallucination if you at one time you agree that you have done all you cadres in MMD can to have Sata curtailed from contesting and it surely wouldn’t work. Conveniently you have not discussed the Freedom Fighter imprisonment of Sata in Northern Rhodesia that you wanted to use to stop Sata from contesting. How wonderful? About letting parents rest in peace, who told you that they are not in peace? Why do you want to run away from facts by bringing in emotional blackmail of not discussing the dead? If the dead is party of the story or situation, why should we skid around them?
Ka Mushot you are stu,pid
What amazes me is that this case as so well argued by Munshya is plain to everyone except people who are so blinded by hatred and malice. Prof Hasungule should be a learned man, but what he has been reported to say in The Post newspaper today (7 June 2011) means that Zambians can have no hope in the world to have redress from the law. This is a Human Rights lawyer who is keen to strip the rights from an individual just because he hates him. Shame. It is no wonder he is prof at one of the bantu Universities of South Africa. The Supreme Court of Zambia has clearly stated that no one was a Zambian prior to 1964. Even the British Citizenship laws also state that one can be British if born in the Protected territories but never took citizenship at independence.
Mr Munshya’s article is interesting reading but does not address what Mr Milton Phiri’s point. The arguments advanced using prior cases cannot be used here because they don’t apply. Thrust of Mr. Milton Phiri’s argument is on the following – fraud.
As pointed out, Mr Rupiah Banda is accused of fraudulently gaining access to the presidency because he lied that both his parents were Zambians by birth or origin. It is not whether he qualified or not but that he lied under oath.
Zambians ought to understand that at some stage, we will have to reap what we sow. We ought to be careful and not be callous in the interpretation and enforcement of our laws. Partisanship should not be the sole and prime motive.
The article has a number of valid points in terms of legal provisions. However, the cases cited by the author can be misleading. The job of judges is to administer JUSTICE. Justice is different from LEGALISM. In administration of justice, there is something called the balance of probabilities. Before coming up with a verdict, judges generally look at the possible consequences of any verdict that they may pass. Having considered all possibilities, they may rule that someone is innocent even if all evidence points to the fact that the person is guilty. This has been applied in several high profile cases in Zambia.
This puts Munshya’s intergrity above that of the POST, within a week he has managed to sound like he is neither Mr Sata or Mr Banda on a personal level. This is good punditry unlike our paper that claims to dig deeper which consistently praises Sata and consisitently derides Rupiah. Sata can not be an absolute angel and the common man understands that and thats exactly where the POSTS propaganda fails.
It is amazing that the country that helped dismantle segregation in Southern Africa, has its own ‘apartheid system’ unwritten in law. Zambians are the most xenophobic people I have ever known. It is funny that they are quiet happy for perceived ‘foreigners’ to be around, but once they take up their rightful places in society, finger pointing begins. Sata called Arthur Yoyo ‘mu Cape kaladi’ Susan Jere (Zimbabwean) and someone called Deepak Patel ‘mwenye.’ Others suffered quietly because they were denied promotion beyond certain posts in GRZ and ZCCM. It may be one reason why the first Zambian Director in ZCCM to be pruned was Dennis Liwewe! This xenophobia MUST end. A Zambian is anyone who has adopted Zambia as his home. I warned about this in 1996. It is Chiluba’s fault.
#29 Kalos, can you then bring facts that blogger ‘pf govt’ is running from about RB and Sata’s parentage? You seem to have some background that we do not have. And please don’t tell me this one said this or that, I want facts on record. And by the way, it will be the same Supreme Court that will determine whether those ‘facts’ will be relevant or not. A kangaroo court composed of PF cadres (fronted by a certain Milton Phiri) cannot make the decision, for your own info. As pointed out by the author of the article, from precedence already set by the Chiluba case, PF and the coterie of cadres – with the Post in tow – will be wasting their time! Just face RB and let him lose square.
# 35, you left out how you MMD cadres have been calling Hon Mulinda. Laughable selected memory, or is it amnesia?
# 36, how childish you sound? My 7 year old third grade son laughed at your response. He was asking me if your type of reasoning is very prevalent in Zambia. I told him you are the odd one. Is it not a fact that MMD cadres have ganged up for over two years to try to find a way to curtail MCS from contesting? What is this about letting dead parents rest? Is that not emotional blackmail to try to sway readers from real issues by throwing in death and the emotions it brings to you non believers who are afraid of death? So, because RB’s roots have been dug, for you survive the scandal and legality of RB’s lies on oath you dubiously bring in Sata’s roots? It wont work.
#37 Kalos, I have lost you here baba, where are the facts on my question in #36? Uleleta ama irrele! So RB should not stand on a very weak parentage issue because for the past 2 years Sata has been hounded. Shed off the ignominy ba PF soar above the MMD and show us who is mature. And who is really childish now :-)? You seem to be avoiding answering questions by calling others names – stick to issues. I think I have to end here you are beyond redemption with your hatred of RB. It is a waste of time reasoning with PF cadres of your caliber. sorry mate I sign off as far as you concerned.
MUKOSHA and the mother were abused by the same man. She is a very jealousy person. She does not like hearing about Zambians that have made it big, especially if you are doing very fine back home. For her success is when you are giving a white man a Blow Job.
The Saints you state and I quote:
“It may be one reason why the first Zambian Director in ZCCM to be pruned was Dennis Liwewe! This xenophobia MUST end. A Zambian is anyone who has adopted Zambia as his home. I warned about this in 1996. It is Chiluba’s fault”.
Did Dennis Liwewe tell you why he lost his job? Was he an illegal worker and they discovered that? Probably you don’t how immigration labor requirements work. In KK’s government we had people working at UNIP HQ who were not Zambians. One such example was Isdor Mundungani. He was as bad as William Banda, John Chinula of Ndola, and I find your statement repulsive that A Zambian is anyone who has adopted Zambia as his home. Where is the sense of citizenship in your statement? Is this an Utopia you are advocating?
Elias munshya has written several articles on a wide range of subjects. I don’t know what his area of specialization is but I would rather he sticks to what he knows well. It is not wise to portray oneself as a jack of all trades who can expound on every subject. It would appear as if he just reads things from literature and posts them on LT, pretending that he is an expert on the subject.
My take looking at his resume….his a political analyst. i guess it answers all
wa Munshya,
Excellent legal understanding right here. Tepakuleka.
U are all right in ur own thinking
This great.Can someone help me differentiate btn Zaire and Congo DR?……Northern Rhodesia and Zambia.ill come back once you have answered.
This is great.Can someone help me differentiate btn Zaire and Congo DR?……Northern Rhodesia and Zambia.ill come back once you have answered.
A new law should be put in place to ban anyone born before 1964 to stand for Presidential elections, I think it would make matters clear on who is and who is not entitled to stand for the Presidency of the Republic of Zambia. Just like there is a minimum age limit, they should also be an upper age limit. Based on the information made available, I think RB is not entitled to be President of Zambia based on the current constitution because both his Parents are not Zambians by birth or descent.
32 Mufumbwe, please go back to Munshya’s article and try to understand without politicking. If you start politicking then you find yourself at odds with what Munshya is talking about.
Let us (lay citizens) wait for what Dr.Chongwe. Dr. Sondashi and Professor Hansungule will say about the matter if Munshya is wrong.
Elias, if you were a lawyer, under common Law, you would win this case hands down. Since the Supreme Court decided on this case, judges would judge according to this case you have brought up. This is how Lawyers win cases.
Elias, you should provide some training to Mr. Kabimba so he can learn how lawyers win cases. Great article.
People must understand Stare decisis, a legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.
This doctrine requires a Court to follow rules established by a superior court.
Therefore Mr. Milton Phiri has no case here.
Good work Mr Siulapwa!
Precedent as it may be, doesn’t mean it may be a flawed precedent, which could still be open to challenge.
E.g. for a person who was not under the british protectorate of NR, but just by happen-stance was on NR soil on the eve of transition to being Zambia, this by all reasons would really qualify him as zambian, by the precedent that has been made. It is certainly something we will have to revisit as we vie for a lasting constitution.
The precedent was set by judges, whom we all know have some muck hanging about them especially when it comes to making judgements about those behind the machinery of govt, so it is not surprising!!
meant,” it doesn’t mean it isn’t a flawed precedent….”
A lawyer friend of mine once told me that in law the truth doesnt matter, what matters is what you say in court to convince the judges and jury. Clearly, this case shows that there is no difference between all forms of citizenship. That is why we need people with better mental and moral aptitude to guide the constitution ammendment and reconstruction process; not George whos only inclination is his own selfish motives. I think RB qualifies ably to be Zambian. That is why our constitution should mostly reflect on capability to lead and not such non entities. Be that as it may, the general feeling is that RB’s presidence is substandard. We duly need constitutional reform.
This just goes to show the gaps in Zambia’s political scenario where politicians resort to dirty games when they have little on table to win votes. Milton and his party just want to draw RB focus to petty issues hoping they can spoil part of his campaign time. Zambian Politicians plz mature and find better ways of selling yourselves rather than time wasting petty games.
‘Freedom Fighter imprisonment of Sata in Northern Rhodesia’, ha ha ha ke ke ke kwena ba kalos 2121 and your 3rd grade son are smoking columbian cock. By the way how is your overage wife?
SATA’S PARENTS CAME FROM TANZANIA. HE TOO DOESN’T QUALIFY TO BE PRESIDENT………
Good luck to Milton Phiri whose only qualification appears to be the title Ambassador…but this again goes to show how shallow Chilubas appointments were, how can a whole Ambassador without doing any research begin to write letters to the CJ and seek for some form of disqualification of RB..if his new found party that is blinding Milton is so sure of wining why are they afraid to meet RB at the ballot?
ama issues yamo kuyaleka fye!!!!!!!!he will do anything possible to defend himself in the end you will look a fool.question?WHY DIDNT YOU SAY THIS ALL ALONG?IS IT BE COURSE YOU WERE STILL ENJOYING THE MONEY OR WHAT?YOU WERE QUITE ALL THE WAY.why now?
MUNSHYA you are spot on. But your Article is equally flawed because you have NOT debated the issue of FALSE DECLARATION filed before the Chief Justice. Your conclusion sounds like it is okay for any person born before 1964 to make false claims of places they were not born from.
Well done Mr. Munsha. You have explained the position of the law very clearly. Mr. Bwezani Banda Snr. was a Zambian. So is his son R. B. Banda.
Let RB just ensure transparent, fair and peaceful elections for us, so we can choose our next leaders fairly and squarely!
@40 Kalos2121
Thanks Kalos. Once again it is always a pleasure to debate with you. The statement I made is clear in its uncertainty. ‘It MAY BE…’ means that it is speculation so, asking me whether Mr Liwewe (whose contributions to Zambia excel those of many so called Zambians) told me why he lost his job, is asking the answer and totological. If YOU know, well and good. You would have done better to tell us the real reason.
A good enough presentation has been made and I think it would be nice if PF Vice Leader (or un-elected so-called vice-president) Guy Scott can stand to Zambian President with this 1996 Constitution that Sata and him (Guy Scott) probably helped Mr Chiluba FJT to make in an effort theat was to bar Dr KK from contesting the 1996 elections. I now see why PF did not allow its MPs to participate in the NCC, because probably the PF leadership of Sata who is said to be from Tanzania and also Guy Scott whose heritage may be fully Zambian from Northern Rhodesian provisions that all who were found in Zambia in 1964 became Zambians by declaration I believe.
If PF will field Guy Scott for President of Zambia election oone day, I may just vote for him to lead our Nation.
_
Matt 6:33
No one owns Zambia it belongs to the global village
WE NED PIPO LYK RB WHO IS TIPICALY ZAMBIAN 2B PRESIDENT SENCE RB.
… But let the issue of lying by RB during nomination be hundled maturing according to Mr M. hiri’s letter.
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Matt 6:33
The Law is an Ass as the saying goes. Bwana Munshya if Dipak Patel and Guy Scot lodged their papers to stand in this years elections, I believe Mr Munshya will be the first one to cry Wolf. Lets face it, that Article 34 is a bad Law that needs revisiting by a well meaning government. I guese the President of Botswana (his mother is British) ,if he was Zambian would not have been near the gates of Plot one if the Law was interpreted by the poor Zambian courts. That is food for thought Mr Munshya!
NiForena bakalamba, kuya bebele. Amaexplaneshoni fyachabe. Rhodesian, Nyansaladan Zambian?? Takwaba. Actually the author sounds Congolese. We don’t have names in Zambia with Wa Chakuti, wa chakuti. Viva NAREP.
Most bloggers appear to be mesmarised by Elias’s apparent ‘legal artistry’. He misses the point. The Constitution states by ‘birth’ or ‘descent’. By birth is clear. By descent means originating through family or ancestors. If Milton Phiri is right, then Rupiah’s father was not Zambian. His only claim to any inkling of Zambia, would have been through ‘work while in transit’. He is wrong to also state that judges are not concerned about the intentions of Parliament when changing the law. That IS one way of interpreting the law. Those who lost to RB in the last elections (assuming they had evidence) could have challenged RB’s parentage. I am not privy to RB’s family history, but do not simply dismiss Mr Phiri’s assertions. I disagree with Elias on he legal front.
#18 , I think you have some serious personal identity problems. You say, you hate Zambia, you wish you were white? with all the qualifications you brag about, why don’t you relocate to Europe or America? Wishing if you were white , just shows lack of confidence you have in yourself as a person, colour has nothing to do with it. Learn to be real and don’t pretend, there is only one Zambia.
Mushota needs a psychiatrist period. Mushota a simple word of advice, you better watch out, check out what being “SECTIONED” as relates to MENTAL HEALTH is. In short, it means, if I believed that you have a serious mental illness which could be injurious to yourself or others, one could simply obtain a “court order” without your consent & you’ll find yourself in an asylum!
Reason being YOU ARE INDEED BLACK BUT YOU DON’T LIKE YOUR BEING BLACK – you are a danger to yourself, ones fear is that one day you will dip yourself in a bath filled with jik (Bleach)! THAT’ ENOUGH CAUSE FOR YOUR TO BE CAGED WHILST THE STATE examines your head – it is that simple, think about it. If you want to verify, ask anyone in the medical fraternity!!
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