The Collapse of the legal system in Zambia- Chitimukulu

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    High Court and Supreme Court Judges during assenting to the Constitutional Amendment Bill ceremony at Heroes Stadium on Tuesday, January 5,2016 -Pictures by THOMAS NSAMA
    File:High Court and Supreme Court Judges during assenting to the Constitutional Amendment Bill ceremony at Heroes Stadium on Tuesday, January 5,2016 -Pictures by THOMAS NSAMA

    By Henry Kanyanta Sosala

    Martin Luther King said: ‘’our lives begin to end the day we become silent about things that matter.’’

    My heart and mind throb and swell in great anguish over the deplorable state of the legal system in our country and I have therefore not written on this important national issue with kid gloves, but to tell it like it is ___ the truth as seen through my own spectacles and nothing but the truth.

    The sequence of the development of our country’s laws follows that the Members of Parliament (sometimes referred to as law-makers) enact laws which are interpreted by the courts and enforced by the police. But the most unfortunate dilemma has happened where judges and lawyers have lamentably failed to interpret the Constitution and have thrown the entire nation into the worst type of uncertainty. We have embarrassing situations where High Court and Constitutional Judges are making 180 degrees u-turns on their own earlier rulings.

    And deducing from the press reports of what went on at the Constitutional Court I strongly believe that the petitioners, i.e., Hakainde Hichilema and Geoffrey Bwalya Bwalya Mwamba who were represented by the supposed strong legal team of thirteen lawyers with the total accumulation of over fifty years of legal experience were not effectively and adequately represented.

    What Confucius, the Chinese sage, said has not lost one iota of importance after 25 centuries: ‘

    ’if language is not correct, then what is said is not what is meant; if what is said is not meant, then what ought to be done remains undone; if this remain undone, morals and acts will deteriorate; if morals and acts deteriorate, justice will go astray; if justice goes astray, the people will stand about in helpless and confusion. Hence, there must be arbitrariness in what is said. This matters above everything.’’

    And indeed our country as at now stands in total legal confusion.

    Mr. Colin Cunningham (the most shrewd lawyer this country has ever had) used to say that any lawyer can twist law in anyway, but must never try to break it. I think the greatest challenge the legal system is facing in relation to the Constitutional Court is that there have been a great laxity in our courts to adjourn cases on flimsy excuses. And unfortunately this is the hangover which both the Judges and the petitioners’ lawyers over-carried to the Constitutional Court.

    And to my great disappointment as you will note from this article, they seem not to understand the ‘’ power’’ and the ‘’rigidity’’ of the Constitution, which is regarded as any country’s ‘’Bible.’’ And I had learned from Mr. Cunningham that no one can even change a full stop into a comma in the Constitution when I asked him why Dr. Kaunda had refused to entrench the Barotseland Agreement in the Constitution at the time when the Zambian delegation was negotiating the independence of Zambia in London in 1964.

    And indeed I later learned from Gerald L. Caplan’s paper: Barotseland: The Secessionist Challenge to Zambia:

    ‘’….. Clement Zaza, UNIP’s political assistant in Barotseland openly acknowledged a year later: ‘The Barotseland London Agreement was agreed upon merely as a passport to enable Zambia to integrate Barotseland and proceed to independence as one country. After all, the Zambian government has no moral obligation whatsoever to honour the said agreement’….’’

    And when the UNIP administration decided to diffuse the ‘’power’’ and the ‘’rigidity’’ of the Constitution in order to pursue its tyrannical agenda without interference, it introduced the ’’referendum to end all referenda.’’ And on the 1964 Constitution, let me quote from Akashambatwa Mbikusita-Lewanika’s manuscript, Sower of the Independence: Case for Re-Decolonization of how the UNIP regime maneuvered to take total power to control and silence their political opponents.

    ‘’Clearly, the 1969 referendum result was, and was intended to be, a licence for easily changing the Constitution, and everything else government wants, in the direction of further consolidating and concentrating power in the presidency, including imposing proscribing all opposition parties and imposing a one-party state and continuing with the colonial practice of detaining non-conformists. Indeed, before and since then, post-colonial governments have been ‘preoccupied with how to win and retain power, overriding the need for due sense of balanced and restraint.’ Thus, the post-colonial nation-state has not only been inappropriate, but also much abused, at the cost to civil and human rights and there have been no sacred cows.’’

    The lawyers who were representing the petitioners, i.e., Messrs. Hakainde Hichilema (HH) and Geofrey Bwalya Mwamba (GBM) were: John Sangwa, Robert Simeza, Musa Mwenye, Jack Mwiimbu, Nelly Mutti, Mwangala Zaloumis, Keith Mweemba, Majo Muchende, Mulambo Haimbe, Martha Mushipe, Chad Muleza, Vincent Malambo and Gilbert Phiri.

    The lawyers who represented the first and second respondents i.e., Mr. Edgar C. Lungu and Mrs. Inonge Wina were: Bonaventure Mutale SC., Professor Patrick Mvunga SC., Erick Silwamba SC, Sakwiba Sikota SC., Dickson Jere, Joseph Jalasi, Lubinda Linyama, Major Akokwa Lisita, Newton Mubonda, Chewe Bwalya and Noel Simwanza.

    The lawyer from the third respondent, The Electoral Commission of Zambia: Mrs. Ngombo Mulenga (in house lawyer), Abyndi Shonga SC., and Steven Lungu. And the fourth respondent, Attorney General: Likando Kalaluka SC., Abraham Mwansa SC., Martin Lukwasa, and Francis Mwale.

    And since this was supposed to be the most highly profiled case in the newly established legal institution (i.e., the Constitutional Court), and from which we had expected mental-cracking arguments from all sides, but unfortunately there is absolutely nothing recorded in the case records to point to as the greatest event in the annals of the legal system in Zambia since the petition just lapsed. And I am of the opinion that the lawyers did not effectively and adequately represent the petitioners as we had expected and anticipated.

    I therefore decided to write to a man (like Mr. Colin Cunningham) ‘’who have empires in their heads,’’ Professor Michelo Hansungule, Professor of Human Rights Law, Center for Human Rights, Faculty of Law at University of Pretoria, South Africa and here is what I wrote to him:

    ‘’……anyway, I just want to find out if the Constitution Court has the right or power to change or alter any part of the Constitution. This arises from the following passage: one party stated: ‘the question of 14 days does not rise or fall on what is right or what is wrong, but rather on the decision of the majority judges at a particular time. From the 14 days decision of both the majority and the minority judges, it is clear that the decision could have gone either way. The 3-2 decision was very close.’
    ‘’And the other party had this view i.e, they claimed that by treating the constitutional 14 days’ time-frame within which to hear a presidential election as mere technicality which could be dispensed with at the convenience of the judges was both wrong and illegal.’’

    And Professor Hansungule wrote back and stated: ‘’Your Highness, the new Constitution creates the Constitutional Court in article 127 which it mandates to hear:
    (a) A matter relating to the interpretation of this Constitution.
    (b) A matter relating to a violation of or contravention of this Constitution.
    (c) A matter relating to the President, Vice-President and councilors and
    (d) Whether or not a matter falls within the jurisdiction of the Constitution.

    Based on this, therefore, in particular paragraph (a), the Court can interpret the Constitution but only where there is ambiguity. In order to give clarity to an ambiguity, the Court can ‘interpret’ and not ‘rewrite’ the relevant constitutional provisions, just interpret i.e., try to give what Parliamentarians had in mind at the time they enacted the ambiguous clause.

    Sir ‘interpretation’ does not mean power to ‘to change’ or ‘enact any part of the Constitution.’ No. this is the reserved domain of the legislature. The idea of going to Court for an interpretation is in order to avoid going to the politicians who enacted the law to understand what they meant because they will give us a ‘political interpretation’ or interpretation according to the ruling party members which may not be in accord with national interests. We go to a professional interpretation of the meaning of a word or clause not easy to understand.

    Having said this, Your Royal Highness, the issue of ’14 days’ did not need interpretation by either the majority or the minority in the Constitutional Court. This is not an issue which is ‘ambiguous.’ We all know the meaning of 14 days from the date of filing the petition. All lawyers and judges know that 14 days mean ’14 working days excluding weekends and holidays.’ All cases filed at the High Court are filed with that ordinary meaning in mind. Second, John Sangwa, the UPND lead Counsel raised the issue with Justice Sitali the first day they started sitting for the petition seeking to understand from the Judge how she understood 14 days to mean and she said ‘once we have started sitting for the petition, 14 days will not apply to your prejudice.’

    Deducing from the fact that the issue of 14 days had been made more than clear by Judge Sitali to John Sangwa, the UPND lead Counsel on the first day of sitting in the open court, I can therefore safely take it for granted that both teams of lawyers from the petitioners and the respondents were aware what 14 days meant. And according to Professor Hansungule, Judge Sitali had stated without mincing words that ‘‘once we have started sitting for the petition, 14 days will not apply to your prejudice.’’ My Cambridge Advanced Learner’s Dictionary defines the noun ‘’prejudice’’ as ‘’an unfair and unreasonable opinion or feeling, especially when formed without enough thought or knowledge.’’

    It must now be very clear from the above fore-goings that it was the Constitution Judges’ different political interpretations of the 14 days that has greatly contributed to the current constitutional crisis. And from the ’14 days’ decision of both the majority and the minority judges, it is quite surprising that the judges deliberately decided to ignore the ‘’power’’ and ‘’rigidity’’ of the Constitution. I must re-emphasize ‘’deliberately,’’ since ignorance is no defence in law.

    And technically the Constitutional Court became illegal and illegitimate as soon as the judges resorted to act outside the Court’s jurisdiction as dictated by the Constitution i.e., they illegally decided to be law-makers instead of being interpreters. Let me quote Professor Hansungule again:

    ‘’ Sir ‘interpretation’ does not mean power to ‘to change’ or ‘enact any part of the Constitution.’ No. this is the reserved domain of the legislature.’’

    And then through the Judges’ joint-political meeting, the unconstitutional 3-2 decision showed that judges Sitali-Mulenga-Mulonda majority might have had a different political leaning from that of the Chibomba-Munalula minority.

    Chipasha Chipalo wrote: ‘’The lawyers made the issue of time an issue of argument with the court……….. They should never and cannot blame the court for dismissing the petition after the expiry of the time specified by the Constitution.’’

    This indeed makes sad reading because there is no need for crying over spilled milk since this issue of 14 days could have been adequately dealt with by the Law Association of Zambia (LAZ) and lawyers who were on the Constitution Committee and I know of Dr. Roger Chongwe and the fact that the Technical Committee chairperson was the former Chief Justice, Judge Anniel Silungwe. This means our lawyers did not understand the implications relating to the Constitution and therefore could not later interpret our Constitution. What shame!

    And let us look at another anomaly because inspite of the fact that Judge Sitali had clarified the issue of 14 days earlier, let us listen to what Perpetual Sichikwekwe reported:

    ‘’….Meanwhile, hearing of Mr. Hichilema’s application for an order that pending the determination of the petition, ballot papers and all other documentation used in the elections be in custody of the court again failed to take off yesterday. Lawyers from both parties arrived at the court around 0900 hours, but the hearing could not proceed because Mr. Hichilema’s lawyers had not served the documents on Mr. Lungu and Mrs. Wina. Justice Chibomba adjourned the hearing of the preliminary application on the preservation and custody of the ballot papers and other documentation to today at 1400 hours’’(Zambia Daily Mail 24th August 2016).

    And the petitioners’ lawyers had not served the documents on the respondents about the fourth or fifth day into 14 days prescribed period.

    And according to Troubleshooter, Chipasha Chipalo: ‘’The lawyers for the petitioners made the mistake of submitting grounds which were more speculative than factual. They also listed too many witnesses for a petition which had such a short time frame provided for the hearing. I can only guess that they did not realize the negative consequences of procrastination on the part of their clients. The originating summons was also too weak leading to applications for amendment of the petition, and yet, they had a full six days in which to prepare a firm case or advise their clients that there were no grounds for proceeding with the petition. The petitioners’ lawyers spent thirteen (13) days out of the Constitution’s prescribed fourteen (14) days filing applications instead of commencing the hearing so that they could prove their case.’’ (Daily Nation 7th September 2016)

    And this simply means that there was nothing pertaining to the petition or any evidence recorded in the Constitution Court case records. And therefore the petition lapsed after 14 days. And in fact the petition never took place.

    Then on Friday, 2nd September and the 14th day to close the hearing of the petition, the lawyers tactfully abandoned their clients in order for Hakainde Hichilema and Geoffrey Mwamba to plead for the unconstitutional extension of the 14 days within which the petition was to be heard. What is surprising was what made the Judges to agree to the request by the petitioners to hire new lawyers when the period had expired. And this actually means that the Judges did not understand the limits and the powers of the Constitution Court.

    Andrew Ntewewe, President of the Young African Leadership Initiative said, ‘’Justice Chibomba had exhibited emotion in her conduct and that it was injudicious for her to have been moved by the political pleadings of Hakainde Hichilema and Geoffrey Mwamba to unconstitutionally allow the extension of the 14 days within which the UPND petition was to be heard.’’ (Daily Nation 9th September 2016).

    Chipalo wrote: ‘’I am inclined to think that the decision to dismiss the petition on Monday 5th September was a realization of the earlier mistake and pressure from the public who justifiably complained about the abrogation of the Constitution.’’ What is amazing is that if we combine the experiences of thirteen lawyers who represented the petitioners, it might total to over fifty years of legal experience and yet they decided to deceive their clients to do what was not workable.
    And so having totally and absolutely failed to file applications of commencing the hearing within the prescribed 14 days so that they could prove their case, then in desperation to cover up their shame of incompetence and blind the nation on their failure to effectively and adequately represent the petitioners, they resorted to the phrase Mr. Colin Cunningham had coined to describe the desperation of failed lawyers: ‘’Fix it, till you make it.’’

    When the petitioners’ lawyers realized that inspite of their numbers (i.e., 13), they had shamefully come to the end of the road they resorted to ‘’fix it till you make it’’ tactics which included unreasonable arrogance from some miscreants. Surely when they walked out of court on the 14th day and last day of the petition, were they (with their 50 + years of legal experience) really convinced that the Judges had power to change the Constitution when they misled their clients to seek to engage new lawyers! Let me once more quote Professor Hansungule again:

    Sir ‘interpretation’ does not mean power to ‘to change’ or ‘enact any part of the Constitution.’ No. this is the reserved domain of the legislature.

    And here is the editorial comment: ‘’Despite the court’s ruling, Mr. Hichilema and Mr. Mwamba have initiated two new actions on the same matter, same facts but before two separate courts. They have initiated another cause of action in the High Court contending that the Constitutional Court did not afford them reasonable time in which to hear their petition. (Daily Nation 9th September 2016).

    Was it the Constitutional Court that did not afford them reasonable time or the contents of the Constitution itself? In fact, I always hear lawyers themselves saying, ‘’ignorance of law is no defence,’’ and how can it be a defence today? There are themselves to blame and the greatest problem in Africa is that we tend to swallow anything from the white man and hence these same lawyers were just nodding their heads to ‘’14 days’’ like tree-frogs (popularly known as blue-heads) or like automated machines.

    And in this respect, Reverend Munshya wa Munshya hit the nail on the head: ‘’The law does not change quickly enough to adapt to the political realities of a democracy. No wonder, Zambia is not led by laws using people, but by people using laws.

    In philosophy it is said: ‘’Never complain about what you have permitted. You have permitted your present circumstance or they would not exist. What you tolerate, you permit to exist. What you tolerate, you authorize to exist….’’

    The lawyers and their mother body the Law Association of Zambia (LAZ), in their misguided efforts to be champions of white democracy neglected to watch out for evil motives of the capitalist-exploiter. The greatest problem in this country is that our ears itch for praises from the whites. Of course, no one can overlook the fact that the white man has brought a lot of good civilization to Africa, but it comes with a sly danger, because while celebrating the generous donor aid such as the distributions of free skippers and such privileges as learning and enlightenment, it can easily blind us to who we really are and come to the fatal conclusion that the white man is the measure of all things. This hypnotizing mentality has subverted the African personality like no other ideology.

    These people are intellectuals and are supposed to be the conscience of our society, but unfortunately through carelessness, this nation is going through unparalleled conflict and division that could have led to tortuous and volcanic hell.
    My interest in this case has just been to try and establish if a team of thirteen lawyers had effectively and adequately represented their clients and from the fore-goings, I have found that they exhibited incompetence and later resorted to deceive their clients by misleading them into unnecessary court actions.

    Professor Hansungule concluded his letter to me: ‘’Please Sir, I request you tell HH and GBM not to waste time with the law on a problem like this……….. If they cannot suggest a political strategy, they can as well forget it…’’

    Let us look at this issue the other way round: No product can be more powerful than the source from which it came. Thus, the quality of any product is dependent upon the quality of the components used in the product, which is dependent upon the quality of the materials used in the component. The potential of something is always related to the potential of the source from which it came. Nothing can be greater than its source.

    In fact the entire issue of this long article is to prove that our Constitution was a brain-child of the capitalist-exploiter i.e., it is an imperialist-driven and definitely not the people-driven Constitution. It is general knowledge that any manufactured product has got the manufacturers’ manual to which the purchaser must refer in order to utilize such a product to the maximum efficiency. But if this useless Constitution was indeed ‘’people-driven,’’ why have we as the manufacturers totally and absolutely failed to de-code and interpret the contents of our own product?

    I have always maintained that the capitalist-exploiter leads with truth but never to truth. And this imperialist-driven document was not drawn in our own interest since ‘’the potential of something is always related to the potential of the source from which it came. Nothing can be greater than its source.’’

    Let me quote Professor Muna Ndulo, a US-based constitution lawyer:

    ‘’I think the constitution-making process in any country should be owned by the people of that country. The Constitution is context-driven; you cannot take the American Constitution, the British Constitution and whatever and say it can work in Zambia. It is not like a fridge which you can take from here and say because it operates on electricity it can work in Afghanistan or wherever. No, it has to be context-driven. We are dealing with our specific problems and we have to address those. And I am also very troubled by the fact that often, external actors have this attitude that whatever they think of is good enough for Africa. I believe we deserve the best and we shouldn’t accept that people think they can advocate things which in their own countries they would never accept…. The key to success is always the people themselves to chart their own course; the crucial issue of ownership would never really be underestimated.’’ (The Post 25th August 2015).

    And deducing from the blind arguments on the ‘’14 days issue,’’ it simply means our lawyers had not the slightest idea the impact it would later make on the interpretation of the Constitution by the Constitution Judges when it was being inserted in the Constitution. I strongly believe the ‘’14 days issue’’ could have easily been managed if foreign lawyers could have been invited to beef up the local legal team.

    The Legal Practitioners Ordinance, Cap 144 in the 1965 Edition of the Laws of Zambia, permitted outside lawyers to apply to the Chief Justice to be admitted as practitioners in Zambia. But unfortunately the Legal Practitioners Act 1973 which came into force on 23rd March 1973 restricted admission to the Zambia Bar and subsequent practice in Zambian courts of lawyers trained abroad.

    However, we are now sadly reaping the consequences of that ban. Attorney-general, Mumba Malila said that the legal profession was in considerable disrepute. ‘’…some learned legal practitioners at ZIALE expecting to enter what is known as the noble profession have deemed it convenient to shamefully cheat their way into the profession by helping themselves to leaked examination papers..’’ (Sunday Post 28th April 2007)

    High court transcript of treason case
    Let me cite one example of what I am talking about: I was availed the information from the High Court’s transcripts in the treason case of Shamwana and 11 others. The trial was before Judge Chirwa J. (HP/166/1981). My interest was on accused 2, Mr. Valentine Shula Musakanya. At the High Court trial he was found guilty and sentenced to death and he was represented by two Zambian lawyers i.e., Messrs. John Mwanakatwe and Bevin Willombe. He was, however, acquitted on appeal by the Supreme Court, a British lawyer Mr. Robert Gatehouse a Queens Counsel (QC) joined the two Zambian lawyers.

    My interest in the trial was that Mr. Gatehouse’s submission was what would normally appear to be an insignificant and trivial issue. It was on the notes a police superintendent took from accused 2, which were admitted by the High Court but where the QC based his arguments.

    Justice Chirwa wrote: ‘’Whilst on the question of confessions, I will briefly refer to the interrogation notes taken from Mr. Valentine Musakanya, exhibit ‘P 100.’ I made it clear when delivering any ruling on the notes that they were being admitted in evidence not as a statement by Mr. Valentine Musaakanya, as they do not qualify to constitute a statement, but as notes made by the witness to remind himself of what accused 2 said i.e., to refresh his memory see Lester & howard Vs R (22). These notes were objected to by Mr. John Mwanakatwe.

    At the Supreme Court were: Judge Silungwe C.J., Judge Ngulube D.C., Judge Mundo T.S., Judge Bweupe and Judge Sakala.
    Here is Mr. Gatehouse’s submission: ‘’…this brings us to accused 2’s situation which is radically different from others in that here, we are faced, not with a confession statement but with interrogation notes, exhibit ‘P 100.’ There was in this case, a wrongful admission of accused 2’s interrogation notes which should never have been before the trial court. It is not in dispute that on November 2-3 1980 PW 110 interrogated accused 2 at Lilayi; whilst police personnel secretly endeavoured to maintain a hand-written record as interrogation. There was no warn and caution administered to accused 2. The notes were not read to him. The notes contained insertions as well as alterations; the notes taken and the information given were not a warn and caution statement. The notes were at that time for the assistance of PW 110….in this circumstances, the lack of caution was not an impropriety.’’

    Mr. Balachandram argued on behalf of the State that the interrogation notes were admissible in evidence as they were a contemporaneous record of the information given by accused 2 to PW 110.
    The Supreme Court ruling: ‘’…clearly, the interrogation notes were, to all intents and purposes, admitted in evidence and used by the trial court as if they were a substitute for a properly admitted confession. This was misdirection. Interrogation notes may at best be used only as an aide-memoire, but should not, as a matter of principle, be used as a substitute for a confession. If this were not so, the Judge’s Rules would fall away as their own inanition. The significance and purpose of interrogation notes is to aid police investigations, not to be later transformed into evidence. It would be undesirable to promote the status of interrogation notes to the status or quasistatus of a confession, since for obvious reasons, the police subsequent to the interrogation notes which according to PW 110’s evidence, had been made as aid-memoire and not for the purpose of production in court.

    ‘’And to the State’s submission that the interrogation notes were admissible in evidence as a contemporaneous record information supplied by accused 2 to PW 110, the learned authors of Archbold, discussing about ‘contemporaneous notes’ made by the police and not signed by the accused point out in paragraph 15- 56 (ix) that, ordinarily, such documents are no more than memory refreshing documents used by officers concerned. In our judgment, the admission (including exhibits) of the interrogation notes was in the circumstances of this case, as in R v Fenion & others (66) ‘technically incorrect’.’’

    There were eleven accused persons in the original treason trial, but four were acquitted by the High Court Judge and of the remaining seven, it was only Mr. Valentine Shula Musakanya who was acquitted by the Supreme Court. And it is amazing to note how the QC on the seemingly ‘’flimsy’’ submission led to the acquittal i.e., on the police superintendent’s own interrogation notes.

    The Author is Chief Chitimukulu, the Paramount Chief of the Bemba Speaking People in Northern Province of Zambia

    79 COMMENTS

    1. +52
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      This man seems to be a genius among the chiefs we have in Zambia. When he stands to speak every ear pays attention. Good observation indeed our legal system is rotten.

      • +12
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        The learned colleagues on the Judiciary above are lining up for jobs. The situation we find ourselves in was initiated by FTJ almost reversed by Mwanawasa then exacerbated by THE MAN OF ACTION and finally just muddled by the man with no direction and purpose. The ones in between nibangwele. CRY THE BELOVED COUNTRY.

      • +2
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        I am very refreshed going through this well articulated article! What says those in the judiciary? I believe they are seething green with envy for I believe none can submit an article of a similar kind.

        A thought that immediately crosses my mind is that the judiciary abandon those stupid white wigs!

      • vote

        Can Mpezeni write such an article? or any other Chief? often too busy with GRZ freebies.

        No wonder Ba Sata was not for Henry Kanyanta Sossala.

    2. +23
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      Great mind, proud to be associated to such great leader, THINKER and all we need is ACTION.

      • +7
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        The minute Priscilla and her goons in the court gave Lungu the presidency, the legal profession was finished. They do not have the integrity as the people in Ghana who decided morally the election and with fairness.

      • +19
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        Yes, because as typical Zambian with low IQ, have failed to read between lines. Go and poop

      • +15
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        DUKA CHAIN AND YOU SOUND VERY IGNORANT, WHAT IS WRITTEN IS FOR ALL OF US ZAMBIANS, NOT FOR THE U P N D AND NEITHER AGAINST THE P F.

      • +4
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        I HAVEN’T EVEN A READ A WORD OF HIS ARTICLE APART FROM IT’S TITLE. LET ME READ IT ON A CUP OF COFFEE. AND SO LET ME FIRST BREW MYSELF SOME COFFEE BEFORE I SETTLE TO READ ONE OF CHITIMUKULU’S ENJOYABLE ARTICLES. I TULY ENJOY READING THE MWINE LUBEMBA’S ARTICLES. THEY ARE HIGHLY EDUCATIVE AND WHAT ONE MAY CALL, “DIGGING DEEPER IN ONE’S RESEARCH PROCESS”.

    3. +9
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      Mr Kanyanta Sosala is not a genius. He tries very hard, though. I don’t get how in his circuitous narrative the 14 days were supposed to be interpreted. Were they supposed to be working days or calendar days? Prof Hansungule seemed to suggest working days as per court practice. Mr Sosala’s article is peppered with references to British lawyers. He even suggests that foreign (British?) lawyers should have been involved in the drafting of the Constitution. Yet, he turns around and blames the current Constitutional mess on imperialists! Which imperialists? 53 years after independence!

      • +11
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        Zambians should accept responsibility for their legal, economic and constitutional mess. We are responsible for our messes, not foreigners, not imperialists. When are we going to grow up and make a country in our own inner image of our environments?

      • +4
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        Ba zed watcdg just because buck teeth has punched some holes in mwinelubembas thoughts doesn’t make anti bemba bane, can’t we just debate things in this country minus thinking about your language?

      • +1
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        I think his arguments mainly is that our legal minds have failed to guide us on pertinent issues when the need calls. I would propose a change in our education curriculum going forward. Let us make Zambianism a subject. We can design it any way we want it to be. The current curriculum is pro-colonialst

      • vote

        @Back Teeth Lungu
        Yet again we are reminded of the importance of reading – I can see that the article got too long for you, you quickly got lost. Train your brain to keep up by reading more.

        Chitimukulu never said this, “He even suggests that foreign (British?) lawyers should have been involved in the drafting of the Constitution.”

        Instead he said this, “I strongly believe the ‘’14 days issue’’ could have easily been managed if foreign lawyers could have been invited to beef up the local legal team.”

        That is, had the petitioners legal team included foreign lawyers, they would have adequately managed to stick to advancing their clients case within the stipulated 14 days instead of hoping for an extension which the court clearly had no legal…

      • vote

        @Back Teeth Lungu

        That is, had the petitioners legal team included foreign lawyers, they would have adequately managed to stick to advancing their clients case within the stipulated 14 days instead of hoping for an extension which the court clearly had no legal authority to do.

        There – clarified for you.

    4. +8
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      Even our traditional leader can sift grain from chaff.
      Allow the ConCourt to hear the 2016 election petition. Excuse of 14 days abrogated by pretence of deferment of trial and exclaim late, will not convince the world. Where there are allegations of theft, evidence demands to be adduced for justice to prevail. Failure to do so compels Zambians to boldly state HH is the undeclared president of Zambia. Lungu was warned by his African doctor in Malawi that “You will face continuous resistance during your reign (rule) because VOTES were not yours”.

    5. +6
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      Now I understand why Sata did not want Kanyanta Sosala for the Chitimukulu. However, since he is my King, I will reserve further comments.

    6. +7
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      Conclusively in my opinion what he is trying to say is that we should not waste any more time on this issue. Thank you for puting it this plain ba Chief.

      • +2
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        Exactly! currently at law this thing(petition) is dead and therefore the focus must be to change the ridiculous 14 day time frame. And upnd has got enough numbers to bring this change if only they can refocus their energies and stop wasting time on the unwinnable.

      • vote

        @FDD for 2021 – do the maths. UPND do not have the numbers in Parliament to change the Constitution. They need 66% of MPs to support them. I do agree though that the legal games are becoming irrelevant. There are other ways of opposing PF, although the legal system is now completely discredited and in tatters.

    7. +2
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      Sosala should be the last to condemn the Judiciary. Bemba Chiefs under him are abusing subjects and selling land at the expense of the poor Bemba men and women who are in the majority. Look at Chief Chikwanda who he has no respect for land on title belonging to non Bembas in Mpika???? Cobra was right Henry Sosala is an internet chief

    8. +4
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      The chief has expressed a personal view. He has to be respected . However, his views is not everyone’s views. Can his views stand in the court of law or is it another street talk?
      Hope his view will not invite bad comments from others holding different views.
      Naturally lawyers don’t argue cases in the air no matter what the public think. what may be in the public may or may not stand in court.

    9. +2
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      One point worthy noting is the “powerful team of lawyers ” on behalf of the petitioners. One would have assumed that with so many of them could have noticed the “traps ” set out in the consititution. Or is it a case of too many cooks spoil the broth?

      • +1
        -2
        vote

        This is where ECL outsmarted Gen. Miyanda – the General thought that the President was assenting to the Constitution blindly.

      • +2
        0
        vote

        Lawyers will be lawyers. What is unacceptable is this Judges to sit there without supervising the proceedings. This is the equivalent of a referee allowing the two football teams kicking the ball out of play for the whole of 90 minutes and then blow the whistle that the game was over. If a football ref will not allow such crass behaviour, what about the ConCourt judges? This is the single failure of the argument that blames the Lawyers for engaging in preliminary technicalities. Where were the judges to guide the proceedings???

      • vote

        A normal person would have noticed that 14 days was not enough to conclude a case such as the presidential petition. Even if you had excluded weekends and holidays it’s not possible. But because our lawyers spend most of their time in bars and have no time to study they just go to court unprepared hoping at file isova. A normal person would have started with challenging the time frame and during this argument would have gained more time to make their case stronger. But it’s come easy, go easy.

    10. +3
      -1
      vote

      Well articulated your royal highness. I agree with you on 3 of 4 points you’ve articulated. 1. Legal profession is in shambles in Zambia. How can 13 lawyers fail to manage time for the presidential petition even after been warned that 14 days will be 14 days @ the beginning. Something wrong with legal training in Zambia. 2. LAZ is complete failure, it’s failed to positively participate in all the major legal developments in the country including constitutional development due to inflated ergo & political affiliation 3. We need to contexualise constitution to our own unique circumstances. 4. I disagree that amended constitution is useless. There’s more power to people. It represents great progress from previous version. A few unclear provisions doesn’t make whole document bad. Even…

    11. vote

      3. We need to contexualise constitution to our own unique circumstances. 4. I disagree that amended constitution is useless. There’s more power to people. It represents great progress from previous version. A few unclear provisions doesn’t make whole document bad. Even American constitution had to be amended several times.

      • vote

        and it’s still being amended. people have been pushing for an amendment to the Electoral College part.

    12. +2
      -1
      vote

      Another insightful piece Paramount chief. Thank you. I, too, blame the petitioner’s lawyers for the debacle that turned out to be the Presidential election. They were not prepared and consequently handled the whole case poorly.

    13. +2
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      vote

      These are true leaders. Nation builders who should be given the opportunity to lead. The intelligence of HRH Chiti Mukulu is only equivalent to that of Ilute Yeta (MHSRP), of Barotseland. Any other professional close to this Man is the late Mwanawasa, Akashambatwa and Arthur Wina, I have refereed him to these people because these were not cowards, using knowledge not military force they stood to challenge the one party state and so is the Chief openly challenging the legal systems and those that manipulated it.

    14. +2
      0
      vote

      @ Chitulika Mwaume. Referring to the HRH as an internet Chief is not acceptable at all. Learn the traditional protocol. If you cant get along with the Chief use other forms to express your discontent and not on this platform. Chiefs are to be respected by all the nationals regardless of tribe or ethnic group. but when you begin to belittle the chief in that way, you are devaluing the Chieftainship. Go and get some lessons from Limulunga/ Lealui my man.

    15. +2
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      vote

      The Chief is not condemning any one but he is just trying to point out why the petitions failed or not did not take place, and to me it is because of the lawyers who couldn’t advise their client properly about the 14 days ultimatum or may be it was because of HH and GBM stubbornness thinking they are the bosses so what or they have got money every judge will fall on their feet so instead of concentrating on the big case they kept on filing in silly cases worsting time remember the lawyer even walked out at one time even at the last minute they let HH & GBM alone to battle it out. Thank you your Royal Highness keep on educating us. As for the other cases referred to he was just trying to make us understand as some of even if you know the exactly what he meant you still ague. As…

    16. +1
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      vote

      His Royal Highness has presented a very good case with wonderful examples of how a legal system can allow itself to collapse and if not careful slip into comma. Granted there could be a few flaws in the essay but by and large i give him an A. Well done Mwine Lubemba.

    17. +1
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      The whole issue has been very confusing indeed. The judges, PF cadres camping outside the constitutional court and threatening violence, ECL refusing to step aside and let the speaker of the national assembly act as president, three judges making the final decision in the absence of the other two and so so so so. Our judiciary need a complete overhaul and we need leaders with integrity for all this nonsense to end.

    18. +1
      -3
      vote

      Useless paramount chief! You chitimukulu and Mpezeni are the worst chiefs this country has. You are not supposed to be called paramount chiefs. You are a disgrace. You can’t emulate paramount chief kalonga Gawa Undi of the chewa speaking people and Litunga of the Lozi speaking people.

    19. +1
      0
      vote

      Chitimukulu, it’s the collapse of Morality among those in opposition and dysfunctional Leaders in side Gov’t roles which is a problem in Zambia. When people begin to refuse the Rule of Law and Judiciary Authority; bad mouthing Judiciary openly with no noticeable action or punishment on Law breakers, then there is a collapse of Law. NOT because of the absence of it but the REFUSAL of its power in society. President Lungu’s gov’t needs to do some sweeping. Picking up all those challenging Law and it’s Authority. Vexatious Complainants that name call Judiciary Authority MUST BE LOCKED UP. LUNGU WAKE UP. This can only get worse. Never mind IMF and the West opinion. We have the right to contain this.

      • +1
        -2
        vote

        FOR CLARITY CHITIMUKULU

        ITS dysfunctional CHIEFTAIN Leaders (like YOU), in side SUPPORT Gov’t roles which is a problem in Zambia. You Sir, are biggest IDI.ot in Zambia. I make no apology calling that. I AM A PATRIOT.

    20. +2
      -5
      vote

      The Chief has misdirected himself. He is discussing issues which are better left to legal experts. Too much plagarisation and quotations. The article is too long and jumbled. The Chief should be told that a Petition has no expiry date and does no lapse. So 14 days is 14 working days excluding holidays and week ends.The 14 working days should have expired on 8 Sept and yet the Minority Judges decision to “dismis” the Petition was made on 5th Sept. Concourt can only hear and determine the Petition and then declare the Winner. Concourt has no powers to dismiss the Petition and there is no law in the Zambian Constitution which allows Concourt to do so. The Law does not allow Concourt to dismiss the Petition and it is illegal to allow injustice based on Time Technicality. The 14 day excuse…

    21. +1
      0
      vote

      Only those with politicised minds will rubbish this article, genuine legal scholars must get a point or two from the article to have insight of what society perception of our current legal system. Truly our legal system is completely different to that of South Africa despite Zambia attaining independence earlier and having led by two Lawyers as presidents in the name of Mwanawansa and now Lungu.

    22. +1
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      vote

      Now i am worried about his involvement in politics although he is rightly entitled to freedom of expression as guaranteed by the constitution. I think the chief jumped to be heard over his opinion. He has laboured so much on the 14 days and the fact that the lawyers did not represent HH and GBM adequately by bringing up other issues instead of concentrating on the 14 days, he concludes. On the whole he blames the lawyers.

      I totally disagree with his opinion on the petitioners lawyers. The petitioners were seeking several reliefs although the main one was the one challenging his election. In case the chief does not know the same constitution he is citing gives guidelines on how the petition in court should proceed

      The most important guideline before the petition can be heard is that…

    23. +1
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      vote

      This is a neutral and real data!!well said Chitimukulu-bravo!!THIS IS WHAT I HAVE BEEN TELLING UPND CADRES THAT NEVER BLAME GOVNT BUT THOSE 13 LAWYERS WHO REPRESENTED UPND BECAUSE THEY FAILED TO ADVISE HH AND GBM CORRECTLY!!!if i were HH,i could have not paid those 13 lawyers as they kept on filling in weak cases daily in,day out until the 14th day when they left HH and GBM alone.they killed the petition.MAYBE THESE LAWYERS NOTICED THAT UPND DIDNT HAVE PROPER EVIDENCE TO PRESENT IN CONCOURT.move on guys and prepare upnd for 2021!!!

    24. +2
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      vote

      That our judiciary is rotting from the inside out says a lot about lungu who’s profession is supposed to be law.

      It’s like having a president who is a doctor and the health system collapses or having a teacher as a president and the education system collapse.

      Lungu is usless. In his private life he is a fraud convict and a drunk. As MP for chawama he donr nothing of note. As minister of home affaires he was pushing to ripe off the council with a $230 million CCTV deal.

      As president, there is no where to start. Too embarrassing to list his failures. If he was a lamentable flop but respected the law it’s a different story. But on top of being a flop the man has no regard for the rule of law.

    25. +1
      0
      vote

      “We have embarrassing situations where High Court and Constitutional Judges are making 180 degrees u-turns on their own earlier rulings.”

      “Then on Friday, 2nd September and the 14th day to close the hearing of the petition, the lawyers tactfully abandoned their clients in order for Hakainde Hichilema and Geoffrey Mwamba to plead for the unconstitutional extension of the 14 days within which the petition was to be heard”

      “My interest in this case has just been to try and establish if a team of thirteen lawyers had effectively and adequately represented their clients and from the fore-goings, I have found that they exhibited incompetence and later resorted to deceive their clients by misleading them into unnecessary court actions.”

      “Professor Hansungule concluded his letter…

    26. vote

      “Professor Hansungule concluded his letter to me: ‘’Please Sir, I request you tell HH and GBM not to waste time with the law on a problem like this……….. If they cannot suggest a political strategy, they can as well forget it…’’

    27. +2
      0
      vote

      The Article is too long and shows muddled thinking. Does Chief Sosala know that the Petition has not lapsed and is very much alive in Courts? Does he know that Concourt never heard the Petition? Does he know that in terms of Court Rules 14 days is 14 working Days? Does the Chief know that the 14 working Days lapsef on 8th Sept and the majority decision to hear the Petition was made on 2nd Sept and the Minority decision to dismiss the Petition was made on 5th Sept? Does the Chief know that Courts are forbidden to use Time Technicalities to block Justice? Does the Chief know that using Time Technicality is a nullity at Law. If the Chief knows all this then he should realise that the Petition remains alive until its heard and until then Zambia has no Legitimate President now.

      • +1
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        vote

        I AGREE WITH YOU. THIS TOPIC IS NOT MEANT FOR PEOPLE WITH NO READING CULTURE BUT FOR PEOPLE WHO ARE LESS INTERESTED IN ENTERTAINMENT BUT FACTS WITH DEEP KNOWLEDGE.

    28. +1
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      vote

      applies to @32 and @33
      THE ABOVE QUOTATIONS GO TO SHOW THAT OUR LAWYERS AND JUDGES USE THEIR ACADEMIC NOTE IN COURT TO ARGUE CASE AND TO MAKE JUDGEMENTS, RESPECTIVELY. THE SECOND QUOTATION POINTS TO THE FACT THAT HH AND GBM SHOULD HAVE SUED THEIR SWAM OF LAWYERS WHO DISREPRESENTED THEM RATHER THAN PURSUANCE OF THE RIGGING ISSUE. THEIR LAWYERS CONNED THEM. THIS IS CONFIRMED BY PROF. HANSUNGULE IN THE LAST QUOTATION WHO ASKED PARAMOUNT CHIEF (KING) CHITIMUKULU TO ADVICE HH AND GBM, “…not to waste time with the law…”. THERE’S NO READING CULTURE IN ZAMBIA AND UNFORTUNATELY, IT AFFECTS EVEN THE LEGAL FRATERNITY OF THE COUNTRY.

    29. +1
      0
      vote

      Nice Ba Paramount, nomba act learm to act like a real royal by not being to available being seen all over Kasama anyhow and stop banging tuma finished young girls!!

    30. vote

      The only mistake in the article is ‘The Author is Chief Chitimukulu, the Paramount Chief of the Bemba Speaking People in Northern Province of Zambia. It was supposed to be ‘The Author is Chief Chitimukulu, the Paramount Chief of the Bemba Speaking People in Northern and Muchinga Province of Zambia.

    31. vote

      Nice and educating article. Hope HH & GBM will read it and realise when their case was lost. Thanks ba Royal Highness.
      Can Chief Mukuni reason and write like this? Nope, only blame blame blame for the government without facts.

    32. +1
      0
      vote

      I agree with HRH the Chitimukulu to a very substantial extent. What I don’t agree with is so small and inconsequential. Why I agree is that I made similar arguments.
      1. The petitioners lawyers were or are incompetent
      2. In the 14 days time they wasted so much time
      3. Even if 14 days excluded public holidays and weekends there is nothing to show that 16 or 18 days would have changed anything
      4. The hh lawyers simply had no evidence
      5. It is most likely that hh was advised that he had no tangible case or there was no time. Hh simply forced them but in that they should have recused themselves but for the money. Instead they recuse themselves at the very last minute at hh expense knowing that they will be paid for the 14 days.
      6. Interestingly one of the ongoing arguments by hh is…

    33. vote

      6. Interestingly one of the ongoing arguments by hh is that he should have been heard indefinitely when both HRH and Prof Hansungule both agree that 14 days is 14 days, even if you added a few days 14 days does not become indefinite hearing as Hh and his UPNDonkeys want to interpret

      Conclusion: there was never any meaningful petition, so UPNDonkeys stop misleading the people and yourselves as donkeys. Hh has more money than brains, or rather has brains of a dinkey to insist on donkey manure to this day. Looking at tge defeated comments or lack of it from UPNDonkwys, I hope this article puts to rest this UPNDdonkey petition.

      But the final comment from me really, is why wasn’t I praised like HRH when I passed my comments right at the end of the petition?

    34. vote

      I hope UPNDonkeys and their leader rest in peace from now onwards. Hh actually knew all this but decided to miskead his donkey or so called followers oerhaps because of the fear that they would replace him for losing so many times without any hope for the future. Or perhaps as a face saving. But everything that hh has done for whatever reason has been deceptive and pure lies without due regard to the damage and divisions he has created in the country for purely selfish reasons. IS HE A ZAMBIAN? IF SO, IS HE PATRIOTIC ENOUGH TO CARE FOR HIS COUNTRY? THE ANSWER IS NO BUT THE DECISION TO PUNISH HIM FOR THAT IS SOLELY THE RESPONSIBILITY IF UPNDonkeys.

    35. vote

      This is not whether the paramount chief should have written this article or not. Who are you to stop him? It is about assessing what he says and constructively reacting to it (not emotionally or being shamefully unable to detach yourself from personal prejudiced diatribes) It requires a recognition that such expression should be encouraged, debated and solutions offered. That there should be pressure on the powers that be to act in accordance with the law. That those who represent the people, as assumed, (e.g. MP’s who have hitherto exhibited impotence) should be on their toes to point out and demand action as regards abuses and compromised officials – be they judges, lawyers or corrupt politicians.

    36. vote

      Out of all of that document the most salient point is the reference to 14 days being working days excluding weekends and holidays.

    37. vote

      I will read later but I respect this chief. He is not a cadre like the one from…

    38. 0
      -1
      vote

      I hope that from last night there is no more petition noises. If there is still an issue it should be directed to Jack Mwiimbu and Martha Mushipe and company. Or if hh wants a refund for useless legal services it should be directed to the two and their friends. Unfortunately for hh Martha Mushipe is now bankrupt anf facing a disciplinary hearing which Lunda Kasonde is not willing to allow. If Linda Kasonde cannot handle a simple and straight disciplinary case like Mushipe’s what is she doing masquerading as President of LAZ and tearing its reputation to shreds while docile and donkey lawyers are looking?

    39. vote

      If your chief spends time smoking chamba and chasing after village skirts, then you are in trouble

    40. vote

      The conclusion is that, since presidential election petitions can not be heard in our courts because of the collapse d judicial system, HH is the undeclared president of Zambia.

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