[By Brig Gen Godfrey Miyanda – 7th November 2017]
This statement responds to the misleading conclusion by the Young American Leadership Initiative (YALI) that President Edgar Lungu has not done anything wrong by threatening, intimidating and making spurious unsubstantiated allegations against the Constitutional Court judges handling the case in which he is an interested party. The YALI message (www.lusakatimes.com 6th November 2017) resonates well with the equally misleading statement by the Republican Vice President in defence of President as well as that by Special Assistant to the President Mr Amos Chanda.
I am one of the Interested Parties opposing the case which is active before the Constitutional Court of Zambia. For obvious reasons, which even President Lungu must surely be aware of as a lawyer and prospective PF candidate for 2021, the Rules of Court preclude public debate of a specific matter that is active before any court (which includes magistrates’ courts). I reserve my right to raise issues once the Constitutional Court has heard and finally determined this case or given other orders. My comment is merely to disagree with and correct YALI (and by implication Republican Vice President Wina and Special Assistant to the President Mr Amos Chanda), that the President has done nothing wrong.
The YALI statement is actually a cover up scheme to divert attention from the crime President Lungu has committed against the Constitutional Court judges. It is misleading because it has ignored and/or deliberately twisted the published facts now in the public domain regarding President Lungu’s diatribe against the Constitutional Court judges hearing the so-called Third Term case.
Whichever media you read that published the President’s harangue of the Constitutional Court judges had essentially the same message. The most prominent headlines on 3rd November 2017 were in the government Times of Zambia (EL EXPOSES JUDGES’ PLOT…PRESIDENT REVEALS KENYA-STYLE PLOT BY CARTEL OF JUDGES TO STOP HIM FROM CONTESTING 2021 POLLS), in the government Zambia Daily Mail (LUNGU WARNS JUDGES… JUDICIARY SHOULD LEARN FROM WHAT’S HAPPENING IN KENYA), and in my former favourite ‘independent’ paper the Daily Nation ((LUNGU WARNS JUDGES…. DO NOT BRING ACRIMONY IN THE COUNTRY). Private media carried the same message from His Excellency who spoke on landing at Solwezi airport on his way to address members of his political party, the Patriotic Front. In short the President was referring to the active case filed in the Constitutional Court Registry at Lusaka, Cause Number 2017/CCZ/004 filed on 8th February 2017. The case was brought, not by President Lungu or the PF, but by four opposition political parties who filed an affidavit indicating that they are supporters of President Lungu’s intended candidature in the 2021 presidential elections. The case was filed on 8th February 2017 and has been going on since then. The Court adjourned on 30th October 2017 to 15th November 2017 to enable the Applicants to file their response to a motion by the 3rd Interested Party (Brig Gen Godfrey Miyanda) to nullify an Order or to dismiss the whole case. This information is NOT SECRET but is available at the ConCourt registry and the public, including Mr Mwanza and his YALI, are free to search the court records at a small fee. The case was filed by Reverend Dr Daniel Pule and three other opposition parties, who are represented by six law firms capable of handling their case without interference from any quarter. I am unrepresented and I have invoked my Constitutional right to represent myself; and I say I am capable as long as there are no underhand methods being applied. By going to the Constitutional Court I have expressed my confidence that I will receive justice without interference or overbearing by the one person who is the Guardian and Watchdog sworn to protect and defend the Constitution and abide by the Rule of Law.
THE SUBJECT MATTER:
The Applicants, Dr Pule and three others, have, through their lawyers, applied to the Constitutional Court to interpret these two questions, inter alia, verbatim –
Whether His Excellency Edgar Chagwa Lungu has served two full terms for the purposes of Article 106 (3) as read with Article 106 (6) of the Constitution of Zambia.
Whether, as a matter of the Constitutional law of the Republic of Zambia, His Excellency President Edgar Chagwa Lungu is eligible for election as President for another 5 year term following his current term of office which commenced on 13th September 2016.
This is the specific Subject Matter before the Constitutional Court which the prospective PF candidate for 2021 Edgar Lungu was discussing on the apron at Solwezi airport. Mr Mwanza has confirmed that he carried out a wide research before publishing his comments; so he is aware or ought to be aware of this case. Of course it will be the biggest lie in this Christian Nation for prospective candidate Edgar Lungu to pretend that he is not aware of this case!
HAS LUNGU DONE NOTHING WRONG?:
According to Mr Mwanza, Vice President Inonge Wina and Mr Amos Chanda, President Lungu has done nothing wrong by threatening the judges as he was just counselling them as the Commander-In-Chief – fellow Christians, what a bad testimony against our Faith! Strangely the judges were not at the airport to be counselled. All these commentators must be schooled about the difficult subject of the Separation of Powers, which may be a topic for another occasion. But definitely the President has no power to “counsel” the Judiciary on their judgements; strictly speaking he is NOT even one of the Commanders of the Services.
In any case there is not any provision for the President to counsel any judge; if he has been doing so behind our backs he has breached the Constitution because judges should not even counsel one another when handling a case. That is why there were two dissenting judgements in the aborted UPND petition. Judges must decide a case according to the evidence presented by the parties to the case, the applicable law and the arguments for and against. Any interference from non-parties are against our justice system.
Thus His Excellency President Edgar Chagwa Lungu is not just wrong; he has committed a criminal offence. In his research Mr Mwanza should have established that there is an offence called “Contempt of Court”. This offence is intended to punish those who interfere with the course of justice. Many treatises have been authored on the subject of contempt of court. But in the context of the YALI claim that President Lungu has done nothing wrong, I say that President Lungu has committed what is defined as ‘criminal contempt’ as opposed to ‘civil contempt’. Criminal Contempt is defined as “the publication (whether by words spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or seeks to scandalise, or lower or tends to lower the authority of any court, or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings, or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other matter”. There are authorities indicating that in spite of the constitutional right to freedom of speech the courts CANNOT be prevented from punishing any contempt of themselves, by spoken or printed words calculated to have that effect.
So the President was not just wrong but mischievous to have introduced this topic for public debate with malice aforethought as he clearly has a secret agenda; he knows he cannot be sued or prosecuted because he has immunity. But although he cannot be sued or prosecuted he can be impeached, which amounts to the same thing. Impeachment under our Constitution means that a president in office can be charged and tried for appropriate offences alleged to have been committed by him, by means of a trial process outside the normal court system. But other citizens, including Mwanza of YALI, can be punished for contempt of court and cannot rely on freedom of speech, depending on what they have published, whether in writing or spoken.
Mr Mwanza and his YALI owe the public, especially the youths of Zambia, an apology for misleading them, albeit deliberately to ingratiate themselves to those in authority. YALI is wrong, double wrong, to allege that President Lungu has done nothing wrong. He has committed Criminal Contempt. Ask him privately; if he is an honest man he will confess to you, instead of misleading his Vice President who wrongly defended him a few days ago saying that he was just counselling the judges since he is the Commander-In- Chief. How do you counsel someone who is not present at your Solwezi Mobile Counselling Clinic?
The President definitely was aware and is aware of what I have written here. So why did he carry out such a serious affront to the Constitution of Zambia? I believe he is a schemer and has schemed his strategy for 2021. Now he wants to provide ammunition to his cadres and create a fake debate which is now going on. He also wanted to sow seeds of hatred against the Constitutional Court judges in case they rule against him; so the chaos he has prophesied would actually come from his Party and his supporters. I know it is the current Constitutional Court Judges he was talking about because they are the only ones with the mandate to hear and determine Presidential Petitions and constitutional issues under the so-called new Constitution.
Since President Lungu has revealed the state secret himself, let us challenge him to table the evidence of the plot publicly so we can judge for ourselves, especially those who are part of Cause 2017/CCZ/004. Let him name publicly the judges who are involved in plots to subvert the course of justice!
Fellow Zambians, we are at the Cross Roads; talking about removing judges of the Constitutional Court though seemingly justified in the prevailing circumstances created by the PF leadership, is one-sided and very premature. In Zambia we are very quick to condemn those who are alleged to have been corrupted. But then we completely let scot-free the corrupters to continue corrupting new targets. My personal opinion is that to remove the judges before discovering who corrupted them will be dull act of covering up and favouring the Big Fish who corrupt others. Instead of exposing the judges, President Edgar Lungu has exposed himself by his open intimidation of the Constitutional Judges. My opinion is that we should momentarily stop demanding for the removal of judges; we must first demand to know what happened during the aborted UPND petition between that Friday night before midnight and the following Monday morning when the ConCourt dismissed the UPND petition. This is not a malicious or empty demand. After the prayers of repentance, reconciliation and unity on 18th October 2017 let the President come forth with the truth as provided in the values in the Constitution that he signed. There is more to this than meets the eye; what is our President afraid of? Perhaps he needs help; he can share his burden with the Men and Women of God surrounding him.
Last but not least I urge President Lungu to hold a genuine Press Briefing forthwith, on radio and television. Let him speak for about 45 minutes to one hour on whatever is upon his heart, live on radio and television; then at least two hours of questions from the Press Corps, followed by public interaction where opposition leaders also be involved. He has NOT held any Press Briefing. The last attempt was a one-sided ambush of the Press Corps on Article 31.
A CONCERNED ZAMBIAN
[7TH NOVEMBER 2017]