By Elias Munshya wa Munshya
A Mr. Milton Phiri, who is described as a former ambassador in the Chiluba regime has written the Chief Justice of Zambia alleging that President Rupiah Banda breached the provisions of Article 34 (3) (b) when he claimed that both his parents were citizens of Zambia by birth or descent. Mr. Phiri claims that Rupiah Banda’s father, Mr. Bwezani Banda, Snr. was born in Nyasaland. He then came to Northern Rhodesian town of Fort Jameson (now Chipata) in the 1930s to work at a farm there. From Chipata he moved to Gwanda (Rhodesia) where he sired several children including Rupiah Banda. Mr. Banda Snr. then returned to Nyasaland in 1962. However, between 1963 and 1964, Mr. Bwezani Banda came back to Fort Jameson where he settled until his death.
Assuming that these facts were correct as presented by Mr. Milton Phiri, I will argue that the relevant laws currently applicable in Zambia do not rob Mr Bwezani Banda Snr of Zambian citizenship by birth or descent. The relevant laws to help in this interpretation is Article 34 itself as interpreted in the Supreme Court cases of Lewanika and Others v Chiluba, Zambia Democratic Congress v Attorney General, and Mushota and Katyoka v Kaunda. I will attempt to show that Mr. Milton Phiri’s interpretation of Article 34 is flawed.
Article 34 (3) (b) of the Constitution of Zambia, reads: A person shall be qualified to be a candidate for election as President if “… both his parents are Zambians by birth or descent…” The electoral laws of Zambia do require that every presidential candidate file an affidavit with the returning officer attesting compliance with these provisions. All presidential candidates, since 1996, have had to swear this affidavit. These candidates would include: Chiluba, Mung’omba, Mwanawasa, Sata, and Mumba among others.
While it is true, as held by Mr Phiri, that the constitution is the supreme law of the land, the courts of law have the competence to interpret it. It is also true that the courts of law cannot strike down the constitution. They can only provide an interpretation of the contentious issues found in the constitution. As such, unlike secondary legislation, which can be struck down by the High Court, constitutional provisions are sacrosanct. They can only be repealed by the people through parliament.
It is prudent when reading laws that after you have read a law or a constitutional article, you must ask yourself whether there is any relevant case law that has expanded or interpreted the meaning of the said law. In this case then, we must ask ourselves whether there is case law in existence that has interpreted the said Article 34 (3) (b). The rule of stare decisis states that where the courts have ruled on a matter, that ruling must stand and it must be followed in the subsequent cases, unless the new case can be distinguished from the original case.
It was in the case of Lewanika and others v Chiluba where the Supreme Court interpreted Article 34 (3) (b). The case of Lewanika and Others v Chiluba, was a presidential election petition in which the petitioners challenged the election of one Frederick Chiluba as president of the Republic of Zambia in 1996. They presented several grounds for the petition. One ground that is relevant to this article concerned their argument that Chiluba, did not satisfy Article 34 (3) (b) of the constitution since both his parents were not citizens of Zambia by birth or descent. They argued that Chiluba’s parent may have been a Mr. Kafupi who they claimed was a Congolese citizen at the time of Chiluba’s birth and that Chiluba was himself born at Chibambo CMML Mission Hospital in the Congo. They also argued that Chiluba’s parentage was at most questionable and as such did not satisfy the said constitutional provision.
In its ruling, the Supreme Court proffered the most far reaching interpretation of citizenship for those who were born before Zambia’s independence in 1964. First, the Supreme Court held that there were “no persons known as citizens of Zambia prior to 24th October, 1964.” What the Supreme Court did here is that Article 34 cannot be sued to demand that people like Mr. Bwezani Banda Snr, Reverend David Kaunda or even Kafupi Chabala be Zambian citizens. This provision of the law would only apply to those to whom it applies: that is citizens of a definite republic of Zambia after 1964.
Secondly, it does not matter where these old people were born. If they had enjoyed protection under the British Crown as people belonging to Northern Rhodesia, they became citizens of Zambia at independence. The question, therefore, would be did Mr. Bwezani Banda Snr belong to Northern Rhodesia? Since he lived in Northern Rhodesia, then the answer would be yes he belonged here. It does not matter that he was born in Nyasaland or was born in Congo as the case was with Mr. Chabala Kafupi. According to Mr. Phiri’s own account Mr. Bwezani Banda Snr lived in Northern Rhodesia for a number of years and in fact settled in Chipata from 1963. In the case of Mushota and Katyoka v Kaunda, the Supreme Court again ruled on the matter. It did not matter that Kaunda’s father was born in Malawi nor that Kaunda himself was born in Malawi, if he was ordinarily resident in Zambia and belonged to Northern Rhodesia then he qualified as citizen.
Thirdly, the Supreme Court in interpreting Article 34 even went further to declare in the words of Justice Ngulube that even an ethnically Chinese baby adopted by a person who belonged to Northern Rhodesia would satisfy the requirements of Article 34. From the judgment: “…the provision would not disqualify for example a person born in Northern Rhodesia or in present day Zambia 35 years ago of Chinese parents (say who died) who has since been adopted by Zambian parents who are Zambian by birth or by decent.”
Fourthly, the Supreme Court then held that the expectation that for a person to qualify under Article 34 they ought to be indigenous to Zambia is just not in the constitution. Article 34 does not say so. Judge Ngulube continued, “We doubt if the framers of the amendments had these problems in mind. If the aim was to provide for indigenous presidents only as suggested by counsel, then quite clearly the language of the amendments actually employed did not and could not achieve this.”
This, therefore, brings us to the obvious question, what did Chiluba and his cohorts want to achieve when they introduced these amendments? Wasn’t it their motive to deny Kenneth Kaunda the right to stand as presidential candidate? This presents the greatest paradox in law. When judges interpret legislation they do not go to the motives of the framers of the law. Judges are not mind readers. They cannot discern what were Chiluba and his parliament’s motive. They can only interpret written intent. Intent in judicial interpretation is never identical to motives. Regardless of what the motives were, the judges interpreted intent of the constitutional amendment following the literal rule. And so, if Chiluba and his parliament had the motive to disqualify Kaunda, the courts did not read those motives at all. As such, by the ruling of the court Kaunda could stand as president and so can anyone from places like China or India.
Mr. Milton Phiri’s act of writing to the Chief Justice instead of commencing legal proceedings against Rupiah Bwezani Banda just goes to show that it is not law that he is interested in. Rather, it is politics. And we have seen the politics of citizenship played against many leaders. It was played against Kaunda (Malawi), then against Chiluba (Congo and Mozambique), and then against Sata (Tanzania) and the latest victim is Rupiah. Zambia must put to rest its ghosts that keep haunting us concerning citizenship.
If it is a game of politics, Milton Phiri is welcome to play. But if it is a game of law, he has already lost the battle.
