His Excellency President Edgar Lungu delivers his speech during the State of the Nation address at Parliament Buildings

By Isaac Mwanza

Introduction

When the motion to impeach the President of the Republic of Zambia was submitted to Parliament, a demand was also made, by the petitioners, to the effect that the vote for the motion requesting the Chief Justice to establish a Tribunal to investigate the allegations against the President and his Cabinet, should be conducted by secret ballot.

It should be noted that for the motion to pass, a majority of two-thirds of members of Parliament, must vote in support of the motion.

On the other hand, this demand has also given rise to allegations that the United Party for National Development (UPND) who are the movers of the motion are paying large sums of money to Members of Parliament from both the governing party and Independents to support the impeachment motion. Some online media have given what they claim to be details of the alleged vote – buying meetings by opposition party leaders.

It is common knowledge that the movers of the motion, led by their party president Mr. Hakainde Hichilema, are asking for a secret ballot in the first round of voting on the impeachment motion, even though the Constitution does not provide for a secret ballot in the first round. This is only permitted in the second round. The demand for a secret ballot is therefore being viewed both as a method to protect members of parliament from the ruling party who may vote in support of the motion, that is, who may vote to impeach their own president or as a way to protect those who have allegedly received some payments.

The Question of the Law

With regards to the voting system pertaining to the motion of impeachment, the Constitution of Zambia, provides as follows:

“Article 108(3)(b)
Where a motion, moved in accordance with clause (1), is supported, in the National Assembly, by a resolution of two-thirds of the Members of Parliament the Chief Justice shall immediately inform the President of the resolution, whereupon the President shall cease to perform the executive functions and the Vice- President shall perform the executive functions, except the power to make an appointment; or dissolve the National Assembly”

“Article 108 (8)(a)
Where the tribunal reports that the particulars of an allegation against the President is not substantiated, the National Assembly shall, on a motion supported by the votes of not less than two-thirds of the Members of Parliament, taken by secret ballot, resolve that the President did not commit the violations specified in the motion; and further proceedings shall not be taken with respect to the allegation.”

The Standing Orders of the National Assembly, 2016 provide for two types of voting procedures: the Manual system and the Division

“Order 65 (5)
Unless otherwise ordered by the Speaker, voting in the Assembly shall be done electronically.

“Order 67
When a Division is demanded, the Division bells shall be rung for four minutes. At the end of a further period of one minute, the Speaker shall direct the Bar to be closed and doors locked, and a member shall not, thereafter, enter or leave the Chamber until after the division has been taken.

“Order 68. (1)
When the Bar is closed, the Speaker shall again put the question and shall appoint two tellers for the ‘Ayes’ and two tellers for the ‘Noes’ whose names shall be recorded in the Votes and Proceedings. The tellers shall record the names of the members voting, sign their division lists and hand them to the Speaker, who shall declare the numbers and the result of the division to the House.

In the face of the law as cited above, the UPND Members of Parliament through Mazabuka Constituency lawmaker, Hon. Garry Nkombo, have demanded a secret ballot in the first round, claiming that a secret ballot will allow the governing Patriotic Front (PF) Members of Parliament, to freely vote their conscience in the first round.

According to the governing PF, this demand is nothing more than a thinly veiled cover to facilitate a fraudulent vote obtained through bribery and corruption of its members. According to the PF, its own private investigation has uncovered a plot whereby the opposition UPND are paying ruling party and independent MPs to vote in favour of the motion. But, let us focus on the law.

Section 22(1) of National Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia makes it a criminal offence for any person to offer to any member of Parliament any bribe, fee, compensation, gift or reward in order influence such member of Parliament in his conduct as such. A member of the Assembly who accepts in any form, gratification in respect of the promotion of or opposition to any Bill, resolution, matter, rule or thing submitted to, or intended to be submitted to, the Assembly, shall be guilty of an offence. The person who offers such, is liable on conviction to a fine not exceeding five hundred penalty units or to imprisonment with or without hard labour for a term not exceeding three months, or to both.

OPEN VOTING v. SECRET BALLOT

The bigger question is; why did the Constitution of Zambia not provide for secret ballot in the first round of the impeachment motion but provided for secret voting in the second round? The answer partly lies in the current allegations of the alleged bribery of Members of Parliament and in enhancing transparency and accountability of elected officials.

From the onset, the motion of impeachment submitted in Parliament require ascertaining that one-third members duly appended their signatures to the motion in order for it to be valid. The law further require that two-thirds of all members of parliament vote in favour of the motion to authorise the Chief Justice to establish an independent Tribunal to conduct an investigation to ascertain whether or not the President violated the constitution or other law, committed a crime under international law or grossly misconducted himself. In both these stages, the Constitution envisages an open and transparent process.

In that instance, an MP moving the motion cannot claim that the requirement for one-third members have been complied with but that they do not want their names to be known. Equally, members of Parliament who believe that a sitting President should be impeached, must not seek to have their vote in secrecy unless they do not believe in what they are voting. The electorate whom the Members of Parliament represent must, as a matter of fact, know how their MPs are voting on a particular matter, whether it represents their desires and desires or not. Therefore, voting for the process to authorise that a Tribunal must conduct an investigation, should not be a big deal, since the goal is to establish the facts on which the impeachment may move forward or, to the contrary, fail.

On the other hand, voting to remove a sitting President in the second ballot is a big deal, and requires clear minds, unfettered by fear of consequences in case the motion fails.

It may be pertinent, at this juncture, to call the attention of our lawmakers that are demanding a secret ballot in the first round, to the decision of the South African Constitutional Court in the similar case of United Democratic Movement (UDM) Vs. Speaker of the National Assembly and Others [2017] ZACC 21.

On 6 April 2017 the UDM wrote a letter to the Speaker. She was asked to prescribe a secret ballot as the voting procedure for the scheduled motion of no confidence in the President. In substantiation, the UDM cited what it termed the obvious importance of the matter, the public interest imperative that a truly democratic outcome be guaranteed and the high likelihood that the vote would otherwise be tainted by the perceived fear of adverse and career-limiting consequences, instead of being the free will of Members. The oath or affirmation taken by Members and considerations of accountability were added in support of a secret ballot as the preferred voting procedure. While admitting that the Rules of the National Assembly do not make express provision for a secret ballot in that motion, the UDM contended that some direction could be found in sections 57 and 86(2) of the South African Constitution, read with item 6(a), Part A of Schedule 3 to the Constitution and rule 2 of the Rules of the National Assembly.

The Speaker said voting procedures in the Assembly are determined by the Constitution and the Rules of the National Assembly and that none of them provides for a vote on a motion of no confidence to be conducted by a secret ballot.

The Speaker placed reliance on the case of Tlouamma v Speaker of the National Assembly [2015] ZAWCHC 140; 2016 (1) SA 534 (WCC), a decision of the High Court in the Western Cape dismissed an application for an order to compel the National Assembly to vote on a motion of no confidence by secret ballot where the Court said held that there was no implied or express constitutional requirement for voting by secret ballot on a motion of no confidence in the President.

In the South African case, the Constitutional Court was asked to rule on the question of whether or not the Speaker of the Parliament of the Republic of South Africa, was within the law when she refused to permit a secret vote in respect of a motion brought by one of the political parties represented in the parliament, to impeach the President of the Republic of South Africa who, at the time, was Mr. Jacob G. Zuma. On 22nd June, 2017, the Speaker ruled that the vote could not be held by secret ballot and that she had no power to change the rule.

The South African Constitutional Court, even as it stated that a secret ballot would be permissible in a vote on a motion of no confidence against former President Jacob Zuma, did not make such an order‚ given the clear allocation of power by the South African Constitutional itself and the separation of powers doctrine. The Court noted that regarding the removal from office either through an impeachment49 or a motion of no confidence, the Constitution is silent on the procedure (This is a fundamental difference from the Zambian Constitution that provides for procedure).

The South African Constitutional Court, in its ruling, noted that the constitution placed the power over all parliamentary procedures and processes, squarely in the hands of the Speaker of the National Assembly. It was entirely up to the Speaker, under the relevant law and the constitution, to decide the method of voting. Subsequent words as to what might be desirable given the circumstances, do not constitute part of the ruling as they are unsupported by the constitution or the law, and amount to the judge’s personal views.

In the case of our own parliamentary processes in Zambia, the decision will squarely be in the hands of the Speaker of the National Assembly, Honourable Patrick Matibini.

Naturally, the doctrine of separation of powers requires that one arm of government do not encroach on matters which ought to be decided by another arm of government. Let us assume that the Speaker respects the Constitution, which requires that the processes leading to Parliament authorising an investigation, must be done through the transparent process and not a process shrouded in secrecy, can a Court in Zambia order the Speaker to do otherwise? The answer is in Section 34 of CAP 12, which states that the Speaker shall not be subject to the jurisdiction of any court in respect of the exercise of any power conferred on the Speaker or such officer by or under the Constitution, the Standing Orders and this Act.

CONCLUSION

At a time when the allegations are becoming more pronounced that some Members of Parliament are being paid to influence how they should vote on this particular matter, the wisdom is to allow Members of Parliament to vote using the transparent system of voting as provided in the relevant statutes and rules, for it is only then that lawmakers who believe an investigation must be conducted by the Speaker, can openly do what they believe is right.

Our system of voting in the National Assembly also helps to add legitimacy to the standing of the National Assembly so that it will not be accused of either authorising or failing to authorise an investigation by manipulating the result because of some alleged underhand compensation. An open voting system also helps the electorate to hold their MPs accountable or at best to understand how they got represented in making of the decision. On the other hand, allowing a secret ballot reinforces the idea that some MPs that are said to have been offered the alleged underhand compensation or bribes and will only make a decision based on the alleged rewards and not what they believed in.

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59 COMMENTS

  1. EXTREMELY INTELLIGENT ARGUMENTS. I ASK WHY WE AINT HAVIN SUCH KIND IN OUR PARLEY. I MUST SAY, OUR MPS ARE SUB-STANDARDS TO UNDERSTAND THIS. BUT ALSO UPND, WHAT KIND OF LAWYERS DO THEY HAVE? WHY NOT TAP INTO MIND OF THIS GUY? THEY DO THINGS WITHOUT CAREFUL RESEARCH THAT UPND LEGAL TEAM AND END UP BLAMING EDGAR FOR ALL THEIR PROBLEMS

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    • Impeachemnti works well if there protests/demonstrations and workers strikers. Its hard to achieve wearing black suits and red shirts.

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    • Zuma thanked the crowd for supporting him, as they had previously.

      He claimed he was innocent, even though he was being treated like a criminal.

      ”Our country’s Constitution states that the accused is innocent until proven guilty. However, there are some people, even people whom I trusted, who have judged me as guilty already. The truth will be revealed in time.”

      “Your presence here shows that you understand the Constitution and law that well.”

      Zuma belted out Umshini Wam (Bring me my machine gun) before he left the court.

      Its all ends in tears…. i hope one Changwa Lungu is watching

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    • @JayJay, the chap who derives pleasure in inflcting pain and humiliation on others is complaining about being “insulted” by @2020vision. Such are symphtoms of Sadomasochism, which could be in an advanced stage in him. Spending too much time commenting negatively has a severe impact on mental health. Suddenly JayJay is trapped in a world in which he falsely sees himself as indepensable, wise and intelligent. What he does not know is that saddism has taken over his mind and it is eating him up in rapid gulps. He is responding with distressed anticitpation because he is unwell. This must be a lesson to all those who frequently use negative language to make a point. Start to seriously think about what you are doing to yourself.

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    • Dear Law students I urge you to read the whole article 108 regarding the impeachment motion.
      You’ll note there is only one round of voting provided in 108 (3) and in this clause the mode of voting is silent but provided and expressly stated in article 108(8) (a) & (b) that that the impeachment motion voting will be done through a secret ballot. Article 108 (8) (a) & (b) also provides that it’s the Tribunal appointed by Chief Justice that substantiates allegations. If not substantiated or substantiated the MPs resolve that the President did not or did commit the offences respectively.

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  2. Thez articles have exposed weaknesses in impeachment motion. Now its clear UPND desire secret ballot coz they been secretly paying MPs. Secrets! Secrets! Secrets! What guarantee exist they bribes won’t extend to those who count secret ballots? I wanna see motion tabled in National Parliament but wanna know how my MP voted. Takwaba ati secret. Does it mean some MPs do not ve balls to openly vote?

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  3. Why is the UPND insisting on a secret ballot? I want to know how the MP I voted for is representing me. I want to know how he is going to vote on the impeachment motion because I am the one who sent him to parliament. Does the UPND understand the meaning of transparency?

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  4. This is clearly a PF stooge and nothing more. Your machinations will not work bwana. Now you are insinuating that PF members have been and are being paid to vote in favor of the motion? Do you have evidence to that effect or you are trying to crowd people’s thinking here? You have belabored to trash all the grounds of impeachment and now you are accusing the PF of working against themselves? We know you have been paid, citing the South African cases will not add any value as our is different my friend. Whether you like or not this impeachment is going ahead, so seat back and relax and wait for the outcome. Are you scared?

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  5. This impeachment motion will not work. Even if UPND tried to use underhand methods to win over Independent and rebel PF Mps baba there is no way you can ever, ever beat State Machinery. Proper cretinism at work here! Just focus on putting the State to task on useless expenditure of Luxury SUVs, poor prison conditions, cutting hefty allowances and salaries, better township roads, cutting taxes, better prices this year for farmers maize and soya crop! This is what the opposition should be doing rather than wasting time on what we in certain circles call a zero vector!

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  6. UPND will still cry rigging when they loose. The Speaker of the National Assembly should not involve himself in the selfish schemes of HH to remove Edgar Lungu.

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  7. Secrete ballot is the only way members will vote with a free conscious and without fear of retribution from ECL and his cohorts. SECRET BALLOT SHOULD BE THE WAY FORWARD

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  8. I have stopped reading this Yali guy’s full articles …just go to conclusion as I am beginning to question his analysis.

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  9. Foolish article, the UPND MPs studied the whole thing and know more than this author, he is busy quoting articles to fit his argument not supported by our constitution. PF are so scared of this motion as it can implicate Lungu, the speaker and more for abrogating our constitution. Who ever comes into power will have all the evidence of Lungu’s crimes. It is also setting in motion possible grounds for removing ECL, lets not forget our leaders get worse as time goes on so don’t expect ECL to get better, he is going to get worse and worse. People are going to have no choice but remove him if they want a better tomorrow

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  10. Fooolish article, the UPND MPs studied the whole thing and know more than this author, he is busy quoting articles to fit his argument not supported by our constitution. PF are so scared of this motion as it can implicate Lungu, the speaker and more for abrogating our constitution. Who ever comes into power will have all the evidence of Lungu’s crimes. It is also setting in motion possible grounds for removing ECL, lets not forget our leaders get worse as time goes on so don’t expect ECL to get better, he is going to get worse and worse. People are going to have no choice but remove him if they want a better tomorrow

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    • He thinks Zambian parliament is like UK where the constituents what their MP voted for ….this guy is just a paid up PF lobbyists…these Yalis are like that!!

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    • useless comment…he has laid out his articles/arguments based on whats in the constitution…nga iwe?? this impeachment will fail because the UPND dunderhead MPs do not read.

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    • Rizzo – this is what you do not understand ….this impeachment motion can not succeed as the numbers are not on the oppositions side…but that’s not the intention of the opposition; they are playing the long game chipping away at Lazy Lungu’s leadership. Look at the mighty Zuma how he falled…it all started with Julius Mulema barking like an annoying toothless dog everyday citing corruption and shambolic leadership.

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    • Jay Jay is not the level of this guy. He knows nothing about law. He is like many dunderheads who mislead HH. Not even UPND MPs can respond to this guy the way they do with other political statements. The article just breaks the spirit of the UPND.

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  11. HH can not remove a democratically elected ECL. People will be on you MPs and the Speaker together with the Chief Justice. Your integrity will be lost my honorable people.

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    • You lazy dingbats think Hakainde will impeach Lazy Lungu and automatically become President …really laughable …it does not work like that, just ask yourselves why Old Hen Bo Inonge has gone all quite all the sudden. Do you know what a running mate is?

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  12. Why is UPND that bitter? Surely even is simple explanation and a little law they couldn’t comprehend? The biggest mistake I have seen with my brothers in UPND is that they so afraid of Lungu and only want a weaker PF leader. But Speaker must allow the motion on the floor and offer this guidance which is extremely sound. Let the motion fail from National Assembly. Looking forward to your next article, hopefully on rich aides and what have u

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    • The lazy thing is breaching every clause in the constitution and you still support him!!

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  13. Thanks Isaac Mwanza! Your non partisan analysis has opened so many blind eyes on impeachment motion yet to be tabled in parliament. It’s extremely dangerous for honorable members to vote for something they cannot defend when queried because in first place were motivated by love of money.
    Am looking forward to the stage when electorates will be empowered to recall MPs when not satisfied with their voting pattern in parliament, or for dodging during debate of important motions.

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  14. @9 Jay Jay. Fair enough. I am not a constitutional lawyer but you will have to provide your basis for doubting his analysis. Mwanza has given his arguments. Criticize him based on what he has written.

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    • I have not got time to write it out to you as the author clearly states PF do not want secret ballot in the first round as they allude to allegations of bribery by the Opposition..now you tell me how the opposition Party can afford to bribe 35 ruling party MPs and mind you these guys get upwards of K80,000 a month.

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    • @jayjay you “don’t have time”??? Mudala you who have dedicated half of your life to commenting on Lsk Times???? Really laughable this lazy thing called jayjay, just like that cartoon character from Fat Albert you are a mindless and very dull robot. Just answer what Mpundu has asked. Instead this dull cretin jayjay will go off on another topic, very dull chap! You jayjay are full of half truths just like your undeveloped mental faculties-your brain is half developed!

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    • 2020vision – I have answered his question can you not read it? Or you just want to pack a thousand insults in a paragraph and throw at me…I mean you are the chap who used to support this Lazy Lungu today you have come to your senses is it because you are see first hand now you are see in for yourself on the ground.
      I do a lot of things and lazy is the last word you would use to describe me.

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  15. Well written article.
    This matter should not be shrouded in secrecy at all.
    MPS are supposed to vote on matters that have been brought in the public domain in writing by the UPND and they have also circulated the well signed one third paper to support their actions without secrecy .
    In the same vain we members of the public would like to know how our representatives vote on this matter of National importance.
    Those MPs accepting bribes must know that Judas Iscariot sold Jesus for a few pieces of silver and then he committed suicide few days later.Dirty money to persecute someone is like a curse.
    They must also know that they have also committed an offense and are liable to a prison sentence ( Nevers is already inside ).
    Whatever is done in darkness will one day come to .
    The…

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  16. We dont need that impeachment. President Lungu was duly elected by the people. HH can not beat Lungu in a normal election. HH borrowed a lot of money from international sources and promised them tenders/contracts. He is under pressure to pay back

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    • You are the reason why we need to build more libraries in Zambia …that money being wasted on Ndola – Lusaka Rd should have been used to build 5 big central libraries in five provinces.

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  17. @jayjay yes I used to and I’m not ashamed of that fact, if you recall after the results of both 2015 and 2016 elections here on lsk times I clearly stated that should the PF not cut down on high allowances, expenditure, reduce taxes, stop buying luxury SUVs and other areas then they would become unpopular which is what is happening. I’m one of the few bloggers who have been singing songs about improving prison conditions and better maize prices for our poor farmers. So what can you tell me???? Nothing just continue with you lazy comments…

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    • Now you are back again to insult again the very bloggers you used to laugh at…really laughable.

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  18. @JayJay BECAUSE OF FEATURING ON ALMOST ALL TOPICS ON LT, YOUR COMMENTS HAVE LOST THEIR SIGNIFICANCE, THEY ARE SHALLOW, CHILDISH, INSULTING, UNINTERESTING, LACK INSIGHT, VERY PREDICTABLE AND DO NOT ADD VALUE TO THE DISCUSSION. YOUR COMMENTS SOUND LIKE COMING FROM A HIRED I HAVE SINCE STOPPED READING YOUR COMMENTS ONCE I SEE YOUR NAME.

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    • Thank you very much for your contribution today …you too have a nice and productive day!!

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  19. YES…..EXTREMELY INTELLIGENT ARGUMENTS ….!!!! BEGS FOR INTELLIGENT RESPONSE ..NOT CARDERSHIP

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  20. Precedents from South Africa’s legislature are helpful but at the same time quite far fetched. Right here in Zambia, the legislature has handled similar motion of impeachment precedents. Least it is forgotten, it was in 2003 during the MMD regime under Levy Mwanawasa (SC). The motion was put to a vote on the government’s request and parliament members voted 92-57 against it. The real opportunity for regime change is election time. It is advisable for opposition political parties to stop playing with fire as fire burns. The negative publicity will hurt investment. The negative publicity will justify cynicism from the ruling party. The vote must be transparent at the first stage because that is establsihed practice. Remember what goes round, comes around.

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  21. I’m in the middle of a blow job right now, will finish readdddddddddddddddddddddddddedvferhewefrgrnyumkl

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  22. Are you not surprised that PF aligned lawyers are quiet…its only blind blockheads who are diving both feet first to check the depth of the river.

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  23. Frederick Chiluba will go down in Zambian history as the greatest democratic. He defeated KK with 75% without bribing a single MP or requesting the courts to takeout KK’s name out from the ballot paper. Why is HH failing to do the same? The answer is simple, HH relies on his tribe and their allied cousins to win an election. Bribing MPS using foreign money to impeach a seating President is a breach of state security. Police must act.

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    • Do you understand winds of change is? We were moving from one party rule to multi-party rule? Everyone was fed up nothing to do with FTJ.

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  24. ISAACK MWANZA – WAKO NIWAKO – JUST THE NAME TELLS YOU WHAT DIRECTION HE IS TAKING. THE IMPEACHMENT MOTION IS GOOD FOR LEARNERS.

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  25. UPND can only win a presidential election if a Bemba or an easterner stands on their party. A tonga standing for a presidential elections on the UPND party shall always kiss the ground. Look at HH, he has already kissed the ground seven times and he thinks an impeachment will get him straight to state house ulabeja mwana!!!

    if the impeachment goes through which I highly doubt, Madam Wina will still be in charge and come 2021 the great PF party will continue to reign and you HH will continue crying over spilled milk.

    UPND please save us the drama and adopt a bemba man.You can adopt the following

    Nevers Mumba
    Felix Mutati
    Bwalya Mwamba aka GBM
    Nalumango Mutale
    Sylvia Masebo
    Mwakafula Nkonde
    Chishimba Kabwili

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  26. How come UPND members are always cry babies when it comes to serious discussions. Just look at fella called Jay Jay, he cries on everything so long it doesn’t support UPND. Others nnow resort to Wako ni Wako because they can’t intelligently refute what’s been clearly and intelligently argued. Problem with HH is that he thinks he can buy everyone and anyone. Now he has gone full throttle against the UN. Surely, how can the UN diplomats help rig elections? Money will be the downfall of HH. Am glad he’s not in good books with this guy who wrote this article. For HH, everything starts and ends with him.

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  27. Assuming the impeachment motion was tabled, the whole process has to be televised live and voting will be MANUAL by MPs raising the their hands which shall be counted. In PF we know all our MPs who we voted to have an allegiance to the Republican President. Moreover, we do also know where they live and who their families are, simple……..Shortcuts by HH and UPND cant and will never work because we are alert!

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  28. Honestly does HH believe he can fraudulently remove President Lungu from office? Does he he know what he is trying to put the country on? Now I believe the sentiments of one the chiefs who is alleged to say, Government is Too Soft”. Imwe, HH has lost elections so countless times and doesnt care about the lives and peace of Zambians and wants everyone to force everyone to be mourning with him, it cant happen! Its time we got serious with this criminal otherwise there are too many dark forces at play here and if we dont act now, it might be too late.

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  29. H H is a criminal? Zambians never cease to amaze me. This kind of thinking really saddens me.

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  30. I enjoy the we articles, so articulate and educative. This is kind of education missing in our country and wish it was taught from inception till time people enter . thabks Lusaka Times. Looking forward to next series

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