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A Major Shoots Himself in the Foot: Why Kachingwe Can’t Win at Law

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MMD national secretary Richard Kachingwe
MMD national secretary Richard Kachingwe

By Elias Munshya wa Munshya

Issues surrounding recent events in the MMD can be analyzed from different angles. However, in this article I wish to concentrate on only one angle. That is whether Major Kachingwe can succeed at law to have the courts invalidate the election of Nevers Mumba as MMD president. It is my opinion that it would be very difficult, in not impossible for Major Kachingwe to succeed at law. I am quite concerned that in our democracy, the High Court has been called upon to rule on matters to do with internal party disputes far too many times. It should be noted that the courts of law are not the best avenue to resolve political differences. This insatiable appetite for politicians to use courts for each and every of their political squabble is a drain on the meager resources of our judiciary. Indeed, instead of having our judges concentrate on major issues such as crimes and other civil matters or indeed constitutional matters, boggling them down to deal with fine issues of political differences is not just right. This trend has been encouraged by this entitlement that Zambians, especially, politicians have come to expect. Filled with corruption and stolen splendor, it is not enough that these gentlemen and ladies have so much going well for them, their lack of appreciation manifests itself in their abuse of the court process. The Zambian High Court has seen far too many political bickers – and this must stop. On that note I must now dwell on the issues of whether Major Kachingwe can succeed or not. But in order to do so, I should state first of all Major Kachingwe’s version of facts.

Major Kachingwe’s version of Facts

  1. Major Kachingwe alleges that Nevers Mumba being a member of another political party is disqualified from being President of the MMD.
  2. That being the case it fell upon him, as National Secretary to act and invalidate the election of Nevers Mumba as MMD President.
  3. If he does not act as National Secretary, the MMD risks being deregistered by the Registrar of Societies.
  4. It is within his power to appoint an acting president and in this case, Michael Kaingu should act as president in place of the invalidated Mumba.

I will argue on each of these issues raised by Kachingwe.

First, Major Kachingwe argues that Nevers Mumba is a member of another political party and as such he cannot hold membership in the MMD. This question can only be answered by fact. Is Nevers Mumba a member of another political party? Nevers Mumba says he is not a member of any other political party. To prove his point, Kachingwe retrieved records from the Registrar of Societies, which still lists Nevers Mumba as president of the Reform Party. According to Nevers, the Reform Party was disbanded or dissolved and its last returns where filed in the year 2008. In this case, then following Kachingwe’s arguments – the only evidence he has that Nevers Mumba is a member of the RP are the returns. But it has been since established in both common sense and in law that records held by the Registrar of Societies do not necessarily convey present reality. A person does not become a member of a society simply because records at the ROS states so.

[pullquote]The Zambian High Court has seen far too many political bickers – and this must stop.[/pullquote]

If indeed those records belong to 2008, they cannot be relevant to the question to be decided today. Either by mistaken repeated practice or by rampant ignorance, the role that the ROS is playing in internal club matters is increasingly becoming more political and more confusing. Memberships, or directorships of a registered society are deemed to have changed at law, when the said society so decides. This has nothing to do with when the ROS is informed. As with a company, once a board of directors or any appointing authority, as the case may be, changes directors – right at that moment of the change – the said changes are deemed to have taken place. The Registrar plays no legal role in effecting this change. The Registrar as the name suggests only registers and does not determine the legal position of the change. So if Andeleki has records from 2008 and has not been informed that Mumba is no longer president of RP, that Andeleki has not been informed of the change does not invalidate the change.

Second, Major Kachingwe argues that since he is the National Secretary of the MMD it fell upon him to act and invalidate Mumba’s election. This thinking is seriously flawed both at law and at common sense. In order to discuss this matter it is important to note first of all the nature of the MMD as a body. The MMD is a club. It is registered under the Societies Act. It is not a legal person. It is not a corporation. It is a body of individual members who have elected a board to run the affairs of this club. This board is known as the National Executive Committee. The NEC then delegates its powers to a National Secretary to administer the MMD. As such, policy-making power remains with the board while administrative power is delegated to the National Secretary. Given that the election of Nevers Mumba was conducted after a policy decision from the NEC it becomes impossible for a National Secretary to invalidate the policy decision made by a board. It is not within the power of an operative like Kachingwe to invalidate the actions of his board. The least he could do is to present before the NEC issues that his has seen with its decision.[pullquote]Indeed, without a policy decision from the NEC that reconsiders the position of Nevers Mumba – Kachingwe cannot unilaterally act. He does not have that power.[/pullquote]

He cannot go it alone and act. On this matter then Kachingwe cannot succeed. A party president like Nevers, everywhere be it in Zambia or everywhere else in the Commonwealth posses some residual power to lead and offer policy direction for his party. In other words, Nevers Mumba can give speeches and offer guidance as to how the MMD will react to national policy matters. This power can never be conceived as belonging to the National Secretary as well. For example, even with PF, Wynter Kabimba cannot invalidate Sata’s election and what Sata says offers policy direction for the PF and not what Wynter says. The same applies to Winston Chibwe in UPND. What Hichilema says serves as a policy directive while Chibwe’s words cannot be held in the same esteem. An operative like a national secretary must always defer to his principal. It is a simple principle. What then are the consequences of Kachingwe’s action? Indeed, without a policy decision from the NEC that reconsiders the position of Nevers Mumba – Kachingwe cannot unilaterally act. He does not have that power.

Third, Kachingwe argues that if he did not act, then the MMD risked being deregistered by Andeleki. Obviously, Kachingwe’s thinking here does not smell good. Actually it stinks of corruption, unreasonableness and utter silliness. I must digress here a little bit. Clubs and societies in Zambia, are customarily said to have “constitutions.” This is what deceives many of our people into thinking that a club constitution acts just like a republican constitution. This is obviously not the case. The law recognizes that clubs exist for a common purpose. Clubs then come up with its rules and regulations of how it will govern itself.

[pullquote]In fact, that is what happened when Mwanawasa and the NEC decided to freeze the position of Vice-President. Not withstanding that the MMD constitution provided for a position of Party Vice-President, the MMD sitting as a board decided to suspend its own constitutional provision by adhering to its president’s policy direction to not elect a vice-president.[/pullquote]

However, it still remains with the members of the group and indeed with its board to change and modify its rules as it goes. The courts of law cannot force a club to enforce its own rules if that club changes or refuses to enforce some rules. At one time Justice Nyangulu ruled in the case of UNIP provincial party membership. Judge Nyangulu read the UNIP constitution so strictly that he invalidated the election of an Eastern Province provincial chairman because he was resident in Lusaka contrary to the UNIP constitution. On appeal, the Supreme Court reversed Nyangulu. Again this was due to a principle at law, that clubs should be able to run their affairs without subjecting them to strict legalities. Indeed, not withstanding what a club constitution says, if members or any group so gathered and recognized by the said society decide to suspend particular rules – the club is within its right to do so. In fact, that is what happened when Mwanawasa and the NEC decided to freeze the position of Vice-President. Not withstanding that the MMD constitution provided for a position of Party Vice-President, the MMD sitting as a board decided to suspend its own constitutional provision by adhering to its president’s policy direction to not elect a vice-president. The lesson then is still valid today. Anyone who could have taken Levy and the NEC to court over the matter was not going to succeed. In this case then, if the NEC has now decided to have an election where Mumba gets elected as MMD president, Kachingwe cannot force the NEC to follow its own rules. The law is as simple as that and there is precedence to this effect. Kachingwe could not unilaterally act.

Fourthly, Kachingwe’s actions are so obviously wrong that he even went ahead to appoint an acting MMD president. This has never been heard of. The National Secretary of any political party cannot unilaterally act to appoint who his superior is going to be. In the MMD hierarchy, just as is the case with other parties, the president is the principal, then the two vice presidents, then the chairman and his deputy and then the secretary and his deputy and so on. However, in the event that a president is invalidated, it would be the NEC to decide who should act as president. Kachingwe’s decisions are marred with an invisible hand that it would be interesting to know why he had pick on one of the veeps to be an acting president. I would not be too wrong to imagine that Kaingu was obviously unimpressed by this dubious gesture.

Fifthly, Kachingwe argues that his has power under the MMD constitution to discipline MMD members. Definitely, the MMD National Secretary does have so much power. But unfortunately, that power does not include disciplining unilaterally, his superior. Nevers Mumba is Kachingwe’s principal. He couldn’t have that power to discipline Nevers. For his obvious amateurish behaviour, I am concerned that Kachingwe received a beating for it. All should condemn violence of any kind. And definitely seeing a grand father hauled out by cadres was a sorry sight to see. I wish him very well as he recovers from his beating. I also wish the police all the best as they apprehend the suspects and bring them before the courts of law. But for now, Kachingwe is in court and obviously; I can predict that he will receive another beating – at the hand of the law this time around. My only prayer and hope is that it does not hurt too much.

Note: This article is not intended to offer any legal opinion. It is intended for academic and political debate. For specific legal advise, Zambians are encouraged to consult members of the Zambian Bar.

editor
editorhttp://www.lusakatimes.com

64 COMMENTS

    • Hahah Kachingwe is a fake Major, surely sorted by cilivian……Now this article Spot on man!!…..Kachingwe’s  trips to statehouse ate his judgement, thus the desperation. But in the midst of a corrupt judicial system,police being the worst , Kachingwe’s beating was well deserved!! Best wishes as he nurses the beatings ..

    • Kachingwe read and did the needful, I think.
      Mumba was Vice President to Mwanawasa (MMD). Just prior to MMD Convention he had just returned from Canada where he was assigned on MMD ticket as Ambassador.
      Did it have to take Andeleki to wake MMD up and Kachingwe to dare correct the matter which could have been corrected by leaders who welcomed Mumba as Vice President or as Ambassador?
      Party jumpers, you better check your membership cards now!

  5. The author is being economical with the truth. Mumba should show that he resigned as RP president. Also when did he become an MMD member? You can not be a member of a golf club if you are not a member this is the logic of Kachingwe. 

    • but why did the same kachingwe recieve mumba’s creditials during the filling in for presidency….he could as well denied him an opportunity to contest coz he was the boss (Executive Director) of the MMD

    • Why must mumba show resignation when the organisation or party has been dissolved, shut down, nolonger exists?? help wrap my mind on this quickly?

  6. Army officers join as grade 12 s, kachingwe is not that smart, including his invisible advisor, grade 2 in the name of MCS.

    The court must dismiss the case with costs, after all UKWa will pay

  7. Thanks! But can you expect from a government led by Sata. Kachingwe spent a lot of time mapping out this BS at State House! How sad!

  10. Scares me if the engineering of Kachingwe’s conduct was done at Sata’s State House. Means that their planning is downright poor and shoddy!

  13. The catch here is that MMD needs to submit its returns owing to the new leadership changes and to do that the President Mumba has to resign from the reform party. either way Mumba will have credibility challenges to lead the party as it will be perceived that he fraudulently assumed the leadership of the MMD. That will definitely give him legitimacy issues as this scenerio is bound to come up in 2016 if not resolved. As a PF supporter i will definitely file an injuction on how Mumba is dual president. hahha

  15. Ba Elias Munshya wa Munshya , this is by far the worst analysis i have ever read ubututu munashe ko i suggest a few beers and then come back and read this crap . i think if there is anyone who is unreasonable and silly its you Elias Munshya wa Munshya . were is the common sense here …

    • Analysis yakupita, i bet it beyond your level of education, and all you can do is insult. clearly state your learned opinion on the issue and not insult.

    • Yaah, kween 15 mututu eeee. Inchintu ubukulu eeh. Wasokololo ubututu bobe boyi…yabaa! Bushe chisungu chakupita nangula ni education level. You must be very dull!!

    • @Mwebantu if you really read the full article . you would know who insulted first nomba imasango sha ma embeciles nififine . responding/ or coming on LT jst to read peoples comments instead of using you heads and analysing wht Elias wrote , you start throwing punches in the air like mad *****s umh! @Mundanda try harder mpelako umuchinshi #musulaObe

    • You’re embarrassing yourself. It is better to keep quiet if you don’t understand something. The analysis is an excellent.

    • @Howard mulenga get of my case sharp and intelligent people make it in zambia like major kachingwe and myself only a fool can write what you jst wrote stupidity is rampant amongst the zambian male bemba folk and you are the perfect example thats why christopher katongo wasnt even picked as BBC player of the year #bastanyoko umungulu with that said respect old Major unprintables to you and mmd .

    • This is what we are trying to teach Mr. Stankonia:

      when you read an article and wish to express your views, this what you do 1. State the reasons why you differ with someone’s opinion or analysis 2. Then back those reasons with fact, and articulate clearly 3. And even as you articulate your ideas, do it with respect for the author of the artcle and yourself really, i should think you have some sense of self worth. As for saying bemba men are stupid, that just confirms what everyone have written about

  17. I almost started reading the article, then I saw the author and gave up!
    Grammatical errors riddled, mildly exaggerated greatly uninspiring and regrettably I find t hard to even pronounce his name

    Sorry but terrible article again Elias, try playing droughts or snakes and ladders

    Thanks

  18. The MMD can do bad by themselves & believe it or not Kachingwe with all his amateur planning has alot of sympathisers within the MMD. One of those is the partys’ chairperson for women Catherine Namugala. Mumba Nevers is not so clean in this matter, he has used threats and intimidation to manipulate the MPs holding deputy minister positions. If Katele Kalumba as former National Secretary for the MMD stands up & states that Nevers was never admitted back to the MMD, what would happen to his presidency of MMD? Elias Munshya wa Munshya completely avoided tackling this issue so as to portray Maj. Richard Kachingwe as a villain working with state house to destroy MMD. As stated at the end Munshya knows his article is not tenable at law as he does not have all the facts. Let’s wait & see…!

  19. WHILE I APPRECIATE THE WORDS OF MUNSHYA, I THINK THE MAJOR HAD SOME POINTS AND ALSO SOME AREAS OF WEAKNESS. OTHERWISE THE MAJOR WILL BE FIGHTING AN UPHILL BATTLE WHICH HE WILL MOST LIKELY LOSE. THE BEST HE CAN DO IS TO STOP POLITICS FOR NOW. SIT BACK AT HOME OR START SOME FARMING. MMD IS ALREADY FINISHED. THE PF CANNOT WASTE TIME AND ENERGY TRYING TO KILL A CORPSE.

  21. Great analysis Munshaya my friend. I must say I have missed your deep and insightful analysis on issues. I hope now PF finally accepts that we are here to stay as an opposition , and should stop their skims and with Andeleki to kill MMD.

    Why are they so scared of MMD with Nevers Mumba as the head. If we are doomed and dead , why not just leave us alone and our members. I’m sure you smell that we shall bounce back. Let the full cleansing and re-branding move forward full throttle

  25. Sata and PF know too well that MMD under the able leadership of the man of God and a true Bemba for that matter will eat into their strongholds in Northern, Luapula and Muchinga provinces and make it dificult for them to bounce back.This situation would give HH and UPND a big advantage !!! Bembas are resolved to support Nevers Mumbe because he is perceived to be a true son (Bemba) and not Sata who originates from Tanzania.

  26. Munshya also does not discuss the bearing that Nevers kickstarting of his 2016 campaign in Mufumbwe without the blessings of the NEC may have on his sincerity in the eyes of his colleagues in MMD. It certainly raises issues about whether he treats his colleagues in MMD with trust and respect.

  27. Munshya also does not discuss the bearing that Nevers kickstarting of his 2016 campaign in Mufumbwe without the blessings of the NEC may have on his sincerity in the eyes of his colleagues in MMD in the long term. It certainly raises issues about whether he treats his colleagues in MMD with trust and respect.

  28. Good article ba Munshya.I bet it is only Mushota who thinks you should instead concentrate on playing isolo.Keep em coming..

  29. Spot on man!!…..Kachingwe’s  trips to statehouse ate his judgement, thus the desperation. But in the midst of a corrupt judicial system,police being the worst , Kachingwe’s beating was well deserved!! Best wishes as he nurses the beatings lol …

  30. Iimbwa ilembelefi taya kwata amano. Mumba is not MMD, has never been and will never be. To him MMD is just a vehicle to riches.

  31. The major is a block-head. nevers is a slimy snake who is power hungry. Like many other Pastors, Nevers is a money and power lover

  33. Interesting analysis with one very important omission: Nevers Mumba was expelled from the MMD in 2008. My understanding of an expulsion is that it it like a fatwa in Islam: it cannot be reversed. Where is the evidence that the expulsion of Nevers Mumba from the MMD was reversed or nullified? Was the nullification or reversal done by the MMD Central Committee? If so, there surely must be minutes of the MMD Central Committee to prove that Mumba was readmitted back into the MMD. If there is no such evidence, legitimate questions must be raised on how Mumba managed to crawl back into the MMD and stand for the Presidency of the party if not through fraudulent means!

  35. Well done Munshya Wa Munshya. This is a well researched, Kachingwe and Andeleki are fools sent by SATAN to finish MMD. They are a danger to democracy.

  36. Only fit for Malabo!
    If Mumba was as clean as yu try to portray him, why did he hide those criminals who threw Kachingwe down?
    BA NEVER PRESIDO MISSED NOAH’S ARK AND BOARDED THE TITANIC TO PROSPERITY. THERE IS NO OTHER SHIP TO BOARD!

  37. The judge who will handle this case has to be strong, they are likely to get suspended by Ukwa if they decide based on facts and dismiss Kachingwe’s styupid claim.

    This so called ‘MMD volcano’ project is an Ukwa masterpiece. Kachingwe and Andeleki are simply pawns!

  38. The author has articulated the rules of evidence as applied to facts in issue. He who asserts must prove (Miller v Minister of Pensions). Kachingwe risks losing the case as this is a club and not a PLC. As the supreme decision making body has expelled him, he is now history and has no locus standi to drag Mumba to court. He is an alien to the MMD. Counsel Hobday Kabwe has a tall order representing Kachingwe. However, he will make good bucks; and that in our profession is allowed. Much obliged and I beg to move.

  39. Kachingwe only did the needful, I think.
    Mumba was Vice President to Mwanawasa (MMD). Just prior to MMD Convention he had just returned from Canada where he was assigned on MMD ticket as Ambassador.
    Did it have to take Andeleki to wake MMD up and Kachingwe to dare correct the matter which could have been corrected by leaders who welcomed Mumba as Vice President or as Ambassador?
    Party jumpers, you better check your membership cards now!

  42. There many dulls Zambians blogging here who don’t understand how valuable this analysis is ….otherwise let us see yours too, if u got guts. By the way, some of u can barely write even letters to your mbuyas. 

  43. I recomend that to solidify your comments watc what really happened.. judge for yourselves wether Kachingwe is a victim or………,check wether Nevers Mumba is saying the truth about Kachingwe’s  matter.. GO TO  WWW.YOU TUBE.COM search for Kachingwe part one to three.

  44. This nonsense is typico nianga.  We are waiting for the allegience of the governemnt in these matters but you tribalist muzungus decide to step in with your katundu and Nik Naks.  Futseke mwana.  This is the pride of the nation speaking of globalisation whislt hating on the very nature of peace keepign talks.  I say Nay to this behavior with 50-Caliber muntus protecting the border posts.  

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