By E. Munshya wa Munshya
The position that the PF has taken over the nationality and parentage of President Rupiah Banda reflects very poorly on the quality of the leaders of PF. It is my argument in this article that the PF’s position on President Banda is flawed at law, misunderstands culture and demonstrates failed politics. Here is why.
The arguments that Wynter Kabimba is advancing towards Article 34 vis-à-vis Rupiah Banda are devoid of any legal acumen. According to Kabimba, and I agree with him, the constitution is very clear in that it says that both parents of a presidential candidate should be Zambian by birth or descent. But what Article 34 says is just a part and not the whole picture of the Zambian constitution.
Constitutional Law is not just about reading isolated articles of the constitution. If that were the case, we would not be having this debate. In fact, if Constitutional law only comprised what is written in the constitution there would be no need for lawyers and no need for courts of law. It is Constitutional Law 101, that the constitution does not just comprise Articles of the Constitution. It also comprises judicial interpretation of those articles. This interpretation of the constitution, according to Zambian constitutional order is the preserve of the Judiciary. The courts interpret the law and adjudicate between parties with regard to constitutional matters.
In constitutional theory, the courts cannot strike down the constitution. Nevertheless, in practice, the court’s interpretation of the constitution sometimes comes close to amending or even striking down some elements of the constitution. The High Court by its power of interpretation could in fact so interpret the constitution in ways that were not even envisaged by Parliament when they enacted that same constitution.
The consequence of judicial interpretation of the constitution means that any person who wishes to understand the constitution should do at least two tasks: read the constitutional articles in connection with other articles within the constitution, and secondly, read the constitution through the lenses of judicial interpretation of that constitution.
The first task sounds very easy. But getting the meaning of words and sentences, even simple ones, is not an easy task. Article 34 presents several concepts like, citizen, Zambia, birth and descent, parents, etc. As such you may need to ask yourself what the word Zambia means in Article 34. And then you have to look at other words such as “parent”. Is it biological parent? Or adoptive parents? If it is adoptive parents then what sort of adoption should it be? Is it customary adoption or civil adoption or common law adoption? You can get more and more questions.
These questions should now lead you to the second task of constitutional interpretation. Which is to ask yourself, how the courts of law have interpreted those particular articles, or words? At law, it is what the highest court in a hierarchy has said that matters. Moreover, according to the legal principles of stare decisis and judicial precedence, when the Supreme Court rules on a point of law their interpretation becomes the law should be followed by lower courts and by lawyers.
In this matter then, we have what the Constitution says on one hand, and then we have how the courts have interpreted those provisions on the other hand. A good lawyer, therefore, does not just end at the first task. This is what Kabimba is doing. He reads Article 34 and then extrapolates from there meaning that the courts have found absurd.
In an earlier article, I had addressed this issue but I think that with the likes of Kabimba we need to repeat ourselves. Questions about Article 34 have aptly been addressed by the Supreme Court in the case of Lewanika and others v Frederick Chiluba. This case is perhaps the most significant ruling in Zambian Constitutional study.
In this case, Akashambatwa Mbikusita Lewanika and his cohorts petitioned the Court arguing among other things that Chiluba did not meet the requirements of Article 34 because they alleged that he was born in Congo and that his Father was a Congolese. In fact, the court even got to meet a man who had striking resemblance to Chiluba, a character known as Chabala Kafupi. This Kafupi bizarrely claimed to have been Chiluba’s father. He also claimed that even if he were a Zambian citizen, he so became after obtaining a National Registration Card and Chiluba his son was indeed born in the Congo.
In its landmark ruling, The Supreme Court greatly criticized parliament’s logic with regard to Article 34. In particular, it recognised the fact that this constitutional article will create real problems for Zambia in the future. The Supreme Court could not strike out Article 34—it does not have the power to do that.
However, what it did was interpret. And this interpretation is tantamount to striking down this article. The Supreme Court ruled that, the requirement that a presidential candidate should produce Zambian parents is absurd because there was no Zambian citizenship before 24 October 1964. It also ruled that even if Chiluba were born in Congo (a fact that was never proven in court), if he belonged to Northern Rhodesia, he would qualify as citizen of Zambia. He only needed to prove that he lived in Zambia by Independence Day.
On Chabala Kafupi, it ruled that indeed even if he claimed to have come from Congo, the fact that he lived in Northern Rhodesia and belonged to Northern Rhodesia he qualified to be a citizen of Zambia. Further, the court made it clear that Kafupi did not become a citizen at the time of applying for the NRC, but became one at independence. An NRC, ruled the court, does not confer citizenship upon any person since it only registers citizenship.[pullquote]I wonder what Scott is feeling or thinking when he sees his party colleagues show such high levels of xenophobia and tribalism. Surely, Scott qualifies to be Vice-President of Zambia and even president of Zambia. He is a Zambian citizen just as Rupiah Banda is.[/pullquote]
What would be the effect of the court’s interpretation then? The Court actually even went to the extent of mentioning that a Chinese who is adopted by a Zambian could still satisfy the requirements of this Article if he can show that his parents belonged to Northern Rhodesia. Here is an example. Michael Sata is Zambian (as he rightfully claims to be) and was obviously born in the 1940s. If at the time that he was born his father and mother (which he claims were Zambian), had adopted, by chance, a young boy from China who was born at the same time as Michael Sata,the constitution,in 2011, would not discriminate between Michael Sata and his Chinese or Taiwanese brother. That Taiwanese Sata would still swear before the Chief Justice that his parents were Zambian by birth or descent.
Did Rupiah Banda then lie when he swore before the Chief Justice that his parents were Zambian by birth or descent? Not according to the Supreme Court. He did not lie at all. What he swore was consistent with the law. It is under this law that people like Guy Lindsay Scott, Dipak Patel, Simon Zukas and several others would legitimately run for president of the republic.
Culturally, when Sata goes to Eastern Province and tells the Easterners that Rupiah Banda is a Malawian he is playing with solemn fire. Sata is thinking that Easterners do not like Malawians just as his Bemba relatives hated Malawians at independence. It is common knowledge that one of the reasons why Kapwepwe and a group of his Bemba hegemonists had fall-out with Kaunda was because they accused Kaunda of favouring his Malawian relatives in Zambian political appointments. This is the argument that Sata is trying to bring. This argument never worked against Kaunda then and it cannot work for Sata now. As Easterners would say, here Sata “aitaya.”
Additionally, Sata is culturally wrong here because he assumes that Easterners hate Malawians just like the Luapulans hate the Congo. But there is a dynamic that exists in the East that does not exist in other border areas such as Luapula or Copperbelt. In spite of Congolese ancestry many Lundas, Ushis, Lalas, and Lambas refuse to have anything to do with the Congo. But it is not so with Zambians of Malawian ancestry. As such, Tumbukas and Chewas may fight in Malawi but once they cross the mountains into Zambia, they become allies. It becomes “Umodzi Kumhawa”. You cannot insult Malawi and expect a vote from the Easterners. Sata’s campaign tactic is very absurd here.
Zambia has had four presidents. Of these, two have had undeniable Malawian ancestry. Both Kaunda and Banda do not hide the fact that their parents came from the then Nyasaland. But both Chiluba and Mwanawasa, in spite of overwhelming evidence that they had Congolese connections, had refused anything to do with the former Zaire. I will leave the tantalizing Congolese connection of both Chiluba and Mwanawasa to a latter article. Suffice here to say that in Amos Malupenga’s biography of Mwanawasa, Amos glosses over a very important piece of information about where Mwanawasa’s mother lived after she was divorced from Levy’s dad. According to Malupenga, that village has suddenly disappeared out of Ndola rural. My sources however, tell me that the village disappeared in Malupenga’s book because it was actually over the other side of Lambaland—in modern day Congo. Zambians of Congolese origin or connections hide their heritage…but it is not so with those of Malawian heritage.
Sata and Kabimba’s positions on Rupiah Banda are not founded on law and are culturally absurd. But one could give some justification for their positions if it were to the PF’s political advantage. But obviously, politically the PF’s position smacks double standards. The optics do not just look too good.
It is rather politically absurd that a party that has Guy Lindsay Scott as its Vice-President would perpetuate such crass discrimination of Zambian citizens. I wonder what Scott is feeling or thinking when he sees his party colleagues show such high levels of xenophobia and tribalism. Surely, Scott qualifies to be Vice-President of Zambia and even president of Zambia. He is a Zambian citizen just as Rupiah Banda is. But with the dust that PF is raising about RB, one wonders whether the PF’s is a party of people who do not care about Zambians of foreign origin, or it is indeed a party of people who just cannot reason!
Kabimba should stop this nonsense. The optics do not look good. Appealing to the UN, AU and SADC over this matter just goes to show that the PF is not ready to rule. Kabimba is quickly turning this great party into a party of patriotic nonsense.
