A University of Zambia lecturer says it is lawless and wrong for Speaker of the National Assembly Nelly Mutti to bar opposition PF MPs whose seats were nullified by the High Court from attending parliament when their appeals to the Constitutional Court remain undetermined.

Responding to questions on Twitter, Dr. Sishuwa Sishuwa urged the Speaker to familiarise herself with the ruling of the ConCourt in the case of Margaret Mwanakatwe v Charlotte Scott where justice Enoch Mulembe ruled that “where there is an appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of the Constitutional Court” stands.

He argued that the Speaker made a mistake to venture into constitutional interpretation using the law within herself, and urged her to accept that she made a mistake and reverse her decision.

Below are a series of the academic’s tweets on the subject as monitored by Lusaka Times.

“The decision by the Speaker of the National Assembly to bar MPs whose election were nullified by the High Court from attending Parliament until their appeals to the Constitutional Court are determined is wrong and undermines the judiciary and the principle of separation of powers.

“The ConCourt ruled in 2016 in the case of Mwanakatwe v Charlotte Scott that by operation of Article 73 (4) of the constitution, an appeal to the ConCourt acts as a stay of the decision of the High Court. This means until the case relating to an election petition is disposed of in the Constitutional Court, the matter is considered active or undetermined, and the affected MPs have the right to remain in parliament. Nelly Mutti either did not read the judgement in the Mwanakatwe case or is out to undermine the judiciary, which would make her the female version of Patrick Matibini!

“If you remember, in 2016, the High Court nullified the election of Mwanakatwe as MP for Lusaka Central constituency. Mwanakatwe then appealed against the verdict to the Constitutional Court. While waiting for her appeal case to be determined, she applied for a stay of the High Court’s decision so that she could remain in parliament. The ConCourt via a single judge, Enoch Mulembe, ruled that there was no need for her to seek a stay because her appeal served as one and allowed her to remain in parliament until the matter was conclusively decided by the Constitutional Court. This is the precedence on this subject, one that may explain why the affected MPs this time did not apply for a stay.

“The purpose of that constitutional provision that allows an MP to remain in parliament pending the determination of their petition was to prevent the creation of a vacuum in the office of MP while the case remained undetermined by the courts. If the High Court verdict was final, despite an appeal, the result would have been a vacancy in the affected constituency.

“Now can you imagine a scenario where a by-election is held after the High Court nullifies a sitting MP’s election only for the ConCourt to overturn the ruling of the lower court on appeal by the affected MP but after the by-election has already taken place? There will be chaos.

“There is no finality to an election petition decided by the High Court, once an appeal against the ruling has been filed in the ConCourt, until after the determination of that appeal by the superior court. By making that ruling, the Speaker either genuinely misread the law, is unforgivably ignorant of the fact that the word ‘determination’ as used in Article 73 (4) has been interpreted by the ConCourt to include the appeal, or is simply incompetent.

“Her main mistake was to venture into constitutional interpretation using the law within herself. Ati “practical application” monga ni kumushi pa nsaka? The Speaker should read the Mwanakatwe v Charlotte ruling by Enoch Mulembe (l doubt she would have come to that ruling if she had read the case), swallow her pride and reverse her ruling. That would be the right thing to do.

“Unless the ConCourt vacates its decision in the Charlotte v Mwanakatwe case (and for that to happen, someone will have to apply to the full bench to reverse the ruling of a single judge), its decision that “where there is an appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of the constitutional court” stands.

“We can criticise the ConCourt for its bad decisions, but that is the institution with the power to interpret the constitution. It is lawless for another institution, the Speaker, or indeed anyone else, to assume the Court’s functions for whatever reasons, or ignore its decisions.”

The Lusaka High Court has granted former Foreign Affairs Minister Joseph Malanji a K10 000 kwacha bail and ordered him to provide two working sureties.

Lusaka Lawyer Makebi Zulu has confirmed that his client has been given bail in a ruling delivered in the chambers. Mr. Zulu said the demand by the Drug Enforcement Commission (DEC) for Mr. Malanji to give them documents they intend to use in the trial has been set aside as being illegal, adding that the same conditions given to Mr. Malanji apply to former Secretary to the Treasury Fredson Yamba.

Mr. Malanji is jointly charged with Mr. Yamba for willful failure to comply with procedure on supplementary expenditure. He is also charged for being in possession of properties, which are reasonably suspected to be proceeds of crime.

Meanwhile, Patriotic Front (PF) officials in Kitwe’s Kwacha Constituency have threatened to protest over the arresting of former Foreign Affairs Minister Joseph Malanji for corruption allegations.

The Drug Enforcement Commission (DEC) on Tuesday arrested Mr. Malanji ,the Kwacha Member of Parliament, together with former Secretary to Treasury Dr. Fredson Yamba in Lusaka.

Mr. Malanji is charged for alleged corruption activities suspected to have happened between January 1st, 2021, and August 31, 2021.

PF officials led by Kwacha Constituency Chairman Alex Chembo said the party is surprised and saddened over Mr. Malanji’s arrest and detention.

Mr. Chembo, the immediate past Kwacha Ward Councilor, said it was unfortunate that Mr. Malanji has remained in detention since his arrest on Tuesday without appearing in court.

He said Mr. Malanji’s arrest amounts to political persecution and is aimed at drifting people’s attention away from matters of development like the economy.

“As PF officials and members in Kwacha constituency, we are not happy over the arrest of Honourable Joe Malanji and why they are not taking him to court,” Mr. Chembo said.

According to a statement released to the media, DEC said Mr. Malanji and Dr. Yamba were arrested for authorizing the transfer of Money to the Zambian Turkish Embassy without the following procedure.

“Kwacha and Kitwe will rise and walk as far as Lusaka to oppose this kind of persecution. These arrests are getting out of hand and we are not happy at all,” said Mr. Chembo who was flanked by Kwacha Ward Chairman Joseph Chileshe.

“If they have found Mr. Malanji with a case let him appear in court. It is not right that they have kept our Honourable in police since he was arrested on Tuesday,” Mr Chileshe added.

The former Foreign Affairs Minister is charged for alleged corruption activities which happened between January 1st, 2021, and August 31, 2021.

The court has set December 9, 2021 as the date on which the ruling will be made.

In this matter, Mr. Malanji is in the first count jointly charged with former Secretary to the Treasury, Fredson Yamba on charges of willful failure to comply with the law when they transferred over K154.2 million to the Zambian mission in Turkey without following the law on supplementary expenditure as provided by article 203 of the Zambian constitution.

On the other charges Mr. Malanji is accused of possession of various properties reasonably suspected to be proceeds of crime among them a helicopter which he purchased at 1.4 Million Dollars.

ActionAid Zambia has said that the fight against corruption in Zambia seems not to be yielding effective results as evidenced in the decline in the Corruption Perception Index (CPI).

In a statement released to the media in joining the rest of the world in commemorating the International Anti-Corruption Day under the theme “Your right, your role; Say no to Corruption”, Action Aid Zambia said that Zambia’s CPI score has dropped by five points since 2018, indicating a rise in public sector corruption and that it is no secret that rampant corruption has resulted into limited access to public services.

Action Aid further noted that it is unfortunate that, in Zambia, most people who are involved in corrupt acts are not prosecuted and that the prosecution rate is very low especially among politically inclined officials and persons.

ActionAid Zambia recommended that the approach to prosecution should be governed by the following principle of dealing with all cases and that no case is too small to investigate and cases must be dealt with cases regardless of rank and status, and also deal with both givers and takers of bribes as they are equally culpable.

Below is the full statement

ActionAid Zambia today joins Zambia and the rest of the world in commemorating the International Anti-Corruption Day under the theme “Your right, your role; Say no to Corruption.” The International Anti-Corruption Day is celebrated annually on 9th December.

Fighting corruption is a global concern because corruption is found in both rich and poor countries, and evidence shows that it hurts poor people disproportionately. Corruption contributes to instability, high levels of poverty and is a dominant factor driving fragile countries towards state failure. In Zambia, the fight against corruption seems not to be yielding effective results as evidenced in the decline on the Corruption Perception Index (CPI). Zambia’s CPI score has dropped by five points since 2018, indicating a rise in public sector corruption. It is no secret that rampant corruption has resulted into limited access to public services.

Therefore, the 2021 theme entails that we all must unite in this hour of the Covid-19 crisis and share responsibilities to promote resilience and integrity at all levels of society. We saw how the Covid-19 funds were misappropriated which resulted in loss of millions of kwacha at the expense of the vulnerable people leading to poor access of health care and supplies.

Further, we have seen how complex corruption is becoming in Zambia mainly perpetrated by those entrusted to run the affairs of the country by the people for personal financial gain.

The Republican President, Hakainde Hichilema raised so many expectations regarding the fight against corruption looking at the increased number of cases that were reported after the 2021 August elections to the Anti-Corruption Commission. The new dawn government committed to a “zero-tolerance policy” on corruption and ensuring that perpetrators are held to account. They further committed to introduce specialized mechanisms to fast-track the recovery of stolen assets, as well as courts, focused on corruption and economic crimes.

ActionAid Zambia acknowledges that such commitments are progressive but if they lack action, they make the fight against corruption incomplete.

ActionAid Zambia notes that a prosecution is a major tool in the fight against corruption as it ensures that corrupt offenders are held to account through prosecution. Unfortunately, in Zambia, most people who are involved in corrupt acts are not prosecuted. The prosecution rate is very low especially among politically inclined officials and persons. Therefore, ActionAid Zambia recommends that the approach to prosecution should be governed by the following principles: (a) deal with all cases. No case is too small to investigate; (b) deal with cases regardless of rank and status, and (c) deal with both givers and takers of bribes. They are equally culpable.

A country determined to fight corruption must have the political will to change laws and the structure of government institutions, to not tolerate corrupt conduct, and to allocate resources to investigate and prosecute corrupt individuals. Thus, ActionAid Zambia is calling on the government to ensure that all international conventions on Anti Corruption are domesticated and Anti-corruption Act of 2012 is reviewed and amended considering the enhancement of the scoop of the Zambian anti-corruption related pieces of legislation such as the Asset declarations, Whistle-blower protection, Plea bargain and negotiations, Asset recovery (local and international) and Public procurement to mention a few.

Furthermore, there is an urgent need for more specialized training, covering especially forensic accounting looking at the sophistication and complexity of these crimes contrast with the broad lack of sufficient capacity and appropriate training of persons charged with investigating and prosecuting these crimes.

Lastly, the fight against corruption is not just for the Anti-Corruption Commission or civil society organizations, but the citizens as well must take the leading role by ensuring that they do not engage in corrupt practices. Remember, you have a role to play in curbing corruption therefore, say no to it for a better Zambia.

Nalucha Nganga Ziba
Country Director, ActionAid Zambia.

Secretary to the Treasury Felix Nkulukusa has said that government officials will no longer be entitled to personal to holder vehicles.

The Secretary to the Treasury said this when he appeared before the committee on parastatal bodies which is chaired by Zambezi east Member of Parliament Brian Kambita.

Mr. Nkulukusa has stated that ministers and other senior government officials will only be entitled to one utility vehicle each and in the event that the official vehicle goes to the garage, they will have to use pool vehicles.

Mr. Nkulukusa stated that going forward, the rest of the cars will be used as pool vehicles this is in an effort to do away with issues of spending colossal sums of money on expensive vehicles when companies are making losses.

Mr. Nkulukusa added that government will now be strict on the use of government number plates as no government official will be allowed to put a government number plate on a private vehicle.

The secretary to the Treasury stated that the secretary to cabinet will soon issue a circular on the use of vehicles and number plates for government vehicles.

Mr. Nkulukusa further said that permanent secretaries, ministers, and senior government officials like him will no longer sit on boards of Parastatal bodies to enable them to provide uncompromised oversight.

Mr. Nkulukusa’s statement was in response to a question by Mr Kambita and Luena Member of Parliament (MP) Mubita Anakoka who inquired on the appointment of permanent secretaries on boards, adding that Government will ensure that qualified people are appointed on boards.

Meanwhile, Mr. Nkulukusa has announced that government plans to use debt swap initiatives to deal with loans sitting at the Development Bank of Zambia involving some of the Government suppliers.

He states that the Development Bank of Zambia failed to perform because of political interference while some institutions have not been paying back loans.

Mr. Nkulukusa was responding to a question on why the country should continue with the DBZ while it has proved to be underperforming and insolvent.