Chapter One Foundation’s Response to Dr. Sishuwa Sishuwa’s critique of Ms. Linda Kasonde’s 2020 performance

By Ms. Sara Longwe Chairperson of Chapter One Foundation

Chapter One Foundation has noted that its Executive Director, Ms. Linda Kasonde, has been placed on Dr. Sishuwa Sishuwa’s list of “Zambians who gravely disappointed” in 2020 which appeared in the 26th January 2020 edition of News Diggers newspaper. The critique arose out of a decision that Chapter One Foundation took to challenge the 2020 voter registration and national registration card registration exercise in the Constitutional Court. Chapter One Foundation was the first organisation to challenge both registration processes in August 2020. We did this in line with our mandate to promote and protect human rights, the rule of law, and constitutionalism in Zambia. Dr. Sishuwa has issue with the fact that we opted to go to the Constitutional Court to seek redress instead of opting to file a judicial review application in the High Court which he states affords greater avenues for interim relief. In our view, there is no remedy that the High Court can give that the Constitutional Court cannot give. Unfortunately, as the case is still in court, we are unable to discuss the merits of the case save to say that we took out our petition to defend our constitutional right to vote, a claim which cannot be remedied in the High Court. One of the advantages of having an action declared unconstitutional by a court of law is that the action that is subject of the petition will be rendered null and void; meaning that the action being challenged will no longer be legally binding. Also, as a court of first and final instance, taking the matter to the Constitutional Court was the quickest way of ensuring that the issues were determined before the 2021 general elections. Cases in the High Court are subject to appeal which may delay the determination of the case.

Chapter One is all for fair comment however, we think that Dr. Sishuwa’s article makes a number of worrying assumptions that we feel that we must address:

1. The assertion that Ms. Kasonde acted as a “lone wolf”.

Chapter One Foundation consists of a team of professional and qualified staff, who makes decisions collectively and did so in this case. As a team, we decided that the case had merit and we decided to file it in August 2020. Dr. Sishuwa neglects to state that, as the first organisation to commence an action, we were the first to reach out to the lawyers and litigants who had commenced the two subsequent actions in the High Court to see if we could work together. Our efforts at collaboration did not yield any results. By the time that they came back to us seeking to work together on a completely new judicial review court case at the end of 2020, our case had advanced to near trial stage. It is worth noting that is likely that our case would have been at trial stage now had it not been for the untimely passing of the judge presiding over our case, Justice Enoch Mulembe, in December 2020. The case has now been allocated to a new judge. Dr. Sishuwa argues that the reason that the other litigants failed to proceed with their cases in the High Court is because Chapter One Foundation had filed a case in the Constitutional Court, a superior court. Chapter One Foundation simply asserted its constitutional right to defend the Constitution. Judges have the discretion to grant or deny leave (permission) to issue judicial review proceedings – there are no guarantees that leave will be granted. No leave is required to commence proceedings in the Constitutional Court. A person can take out a petition in the Constitutional Court to defend the Constitution as of right. Dr. Sishuwa also neglects to state that the Electoral Process Act has been in effect since 2016 and nobody had stepped forward to challenge the manner in which the right to vote has been violated until after Chapter One Foundation did.

2. The assertion that Ms. Kasonde and Chapter One Foundation should have deferred to the lawyers in the other cases.

As already mentioned, Chapter One Foundation works as a team and that we had earlier reached out to the other litigants in the other two cases. Dr. Sishuwa asserts that the position taken by the litigants in the other two cases was the more correct way to seek redress from the Courts of law. He further asserts that, as the more “junior” lawyers to the lawyers in the other cases, the lawyers on the Chapter One Foundation case should have yielded to the other lawyers’ position. As lawyers can attest, there are many ways of approaching a legal case that take into account various considerations, some of which we have discussed. Having weighed our options, we decided to file a petition in the Constitutional Court taking a broad approach to defend and protect the constitutional right to vote. Also, this year marks Ms. Kasonde’s twentieth year of practice, she is hardly a novice. But that notwithstanding, at Chapter One Foundation we do not believe that junior lawyers have nothing to offer. Our team is made up of highly competent young lawyers whose advice we rely on.

3. The one sidedness of his arguments

In his article, Dr. Sishuwa questions the decisions taken by Chapter One Foundation on technical grounds without having engaged Chapter One Foundation on the issue. He however does not seem to question the decisions taken by the other litigants. We look forward to engaging with Dr. Sishuwa to provide our viewpoint on these matters as we believe in constructive debate on issues, particularly issues of national importance.

Chapter One Foundation expects and indeed welcomes fair criticism of our actions. We do not believe that anyone has a monopoly on knowledge. Our small team works very hard to promote human rights, constitutionalism, and the rule of law in Zambia to the best of our ability.