FODEP'S FULL STATEMENT ON THE ACQUITTAL OF CHILUBA

August 27, 2009

FOR IMMEDIATE RELEASE

FODEP’S STATEMENT ON THE ACQUITTAL OF CHILUBA, HIS DEMAND FOR THE RESTORATION OF HIS IMMUNITY AND ON THE WITHDRAWAL OF THE APPEAL

1. Finally the protracted and heavily contested prosecution of Dr. Chiluba has come to pass with his acquittal by the Subordinate Court . While being mindful of the financial implications that such a prosecution had on the meagre state resources and the politicking that came with it, one cannot but be gratified that this case, the first of its kind had run a full course of the legal process. There were genuine fears that the prosecution may abruptly, for political convenience be brought to an end. This indeed confirms and entrenches the rule of law that “no man is above the law”.

2. That said, we are however concerned with the current events of the aftermath of the Judgment which are raising fundamental Constitutional and jurisprudential issues. Although we are yet to read and study the said Judgment as it is not yet typed and ready for distribution, we can not keep quiet for long but to comment for the time being as we await receipt of a copy of the typed Judgment, as these issues are very important for the good, democratic, transparent and accountable governance firmly founded on the rule of law.

3. At the outset, we are happy to note that the Task Force being dissatisfied with the Judgment have decided on behalf of the Zambian People, in whose name all prosecutions are conducted, to appeal against the said Judgment to the High Court. In this regard we will not comment on the merits or demerits of the Judgment as the matter is now subjudice. Our comments therefore are on the demand for the restoration of the immunity and the current dispute or argument that the DPP is the only person to file the Notice of Appeal or that he must first give the consent before such an appeal is lodged, which appeal regrettably has been withdrawn.

4. We note that barely 24 hours of his acquittal, Dr. Chiluba wrote to the Speaker demanding that he immediately convenes a special session of Parliament to consider the restoration of his immunity claiming that it is his accrued Constitutional right. He even suggests that if it would not be possible to do so immediately, to refer the matter to the Standing Orders Committee whose decision would then be ratified by the House when in session.

5. By making such a move initiating the process so to say, as an Organisation, we can reasonably assume that Dr. Chiluba has now recognised and accepted that Parliament had properly and lawfully removed his immunity despite having demonised that institution for what they did arguing among other things that he was not afforded the right to be heard. It is incumbent, and we call upon all leaders and citizen alike to respect democratic institutions that have been created and submit to their authority. Leaders must lead by example and therefore must be the last ones to condemn these institutions that they were party to and whose authority they also benefited from.

6. We strongly oppose the idea of “restoration” of Dr. Chiluba’s immunity as doing so is unconstitutional. We urge the Honourable Speaker not to convene a Special Session as demanded or any Session at all for that matter, for the consideration of this issue as doing so will be tantamount to using Parliament to engage in unconstitutional business which is ultra vires its jurisdiction.

7. We submit that the immunity that is enjoyed by a President against criminal prosecution in respect of crimes committed during his/her tenure of office is not a right but a privilege which can be taken away at any time in accordance with the law as was the case. This privilege we must add is never conferred by Parliament but by the Constitution. Parliament therefore has no authority to “restore” Dr. Chiluba’s immunity so to say. Parliament cannot confer that which it has no powers to do.

8. We wish to emphasize that this privilege is only enjoyed by a person who is holding the office of President or performing the functions of that office. It is our firm submission that Dr. Chiluba is neither holding the office of President nor is he performing the functions of that office to claim and enjoy such privilege.

9. Article 43(2) of the Constitution, Chapter 1 of the Laws of Zambia (herein after referred to as the Constitution) provides as follows:

Article 43...

(2) A person holding the office of President or performing the functions of that office shall not be charged with any criminal offence or be amenable to the criminal jurisdiction of any court in respect of any act done or omitted to be done during his tenure of that office or, as the case may be, during his performance of the functions of that office. (emphasis added)

10. It is very clear from the above Article that it is the Constitution itself that confers such protection, and not Parliament, by virtue of one holding the office of President or performing such function. It does not require an act by any person or institution for that person to enjoy such immunity.

11. As we have stated above that immunity from prosecution is not enjoyed as a right but as a privilege, because the Constitution having granted such protection, vests in the National Assembly the power to lift such immunity and open such person to criminal prosecution.

12. Article 43(3) of the Constitution provides as follows:

“(3) A person who has held, but no longer holds, the office of President shall not be charged with a criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any act done or omitted to be done by him in his personal capacity while he held office of President, unless the National Assembly has, by resolution, determined that such proceedings would not be contrary to the interests of the state.” (emphasis added)

13. In this Article, the jurisdiction of the National Assembly with regard to the issue of immunity is clearly limited to the removal of such immunity only and nothing can be read into it empowering conferment of the same. It is on this basis that we are urging the Speaker to respectfully decline such demand and call upon all the Members of Parliament not to even entertain the idea.

14. There is no provision in the Constitution providing for restoration of immunity and any move to do so shall be void to the extent of its inconsistency with the constitution.

15. If we are wrong with our interpretation of the relevant Articles of the Constitution, which we think we are not, we still submit that once the immunity has been lifted, it can never be restored. The lifting of the immunity is never temporal but final. It is not even conditional on the outcome of the criminal prosecution. If that was the case, the Constitution would have expressly said so.

16. Assuming Dr. Chiluba was convicted, would he still have claimed the restoration of his immunity since his prosecution has come to an end? This is a very important question that must be answered by those advocating the restoration of his immunity. In his letter of demand, the restoration is premised on his acquittal and is not independently based on the conclusion of his case. Otherwise his acquittal would have had no relevance or even worth mentioning in his letter.

17. To that extent we are fortified in our humble submission that immunity once lost can never be restored however innocent or guilty a person is. In our view immunity is like an egg shell which once broken can never be made whole again.

18. What Article 43(3) of the Constitution is saying is that for as long as Parliament has not removed your immunity, you will never be prosecuted. But once that has been done, then sorry you have to be subjected to criminal jurisdiction, period. It does not make any legal sense to reclaim the privilege of not to be prosecuted after you have been already prosecuted. What are you preventing when the act has already been done?

19. Coming to the argument as to who should file the Notice of Appeal or whether indeed the DPP must first give consent before the same came be filed, we find such an argument to be self defeating and contradictory in many respects. It is our humble submission that it is not just the DPP himself who can file a Notice of Appeal and you do not need the consent of the DPP to file same.

20. While recognising the exclusive authority of the DPP under the Constitution to conduct criminal prosecutions, it is our view that once consent has been given to conduct a private prosecution as was the case in this matter, unless the DPP terminates such prosecution before a judgment is delivered or he has taken over such prosecution, the Task Force has the right to file a Notice of Appeal.

21. It is our submission that “criminal proceedings” does not only relate to conducting the trial but that it encompasses the appeal processes as well. This means that a private prosecutor, who is not satisfied with the outcome of the trial, has the right and authority to file a Notice of Appeal as the initial authority extends to appeals as well. This is why, from a layman’s point of view, the ACC, DEC, NAPSA and other prosecuting authorities do not require the consent of the DPP when prosecuting their appeal or responding against appeals.

22. Our above submission is based on Article 56(6) of the Constitution which provides as follows:

“(6) For the purposes of this Article, any appeal from any judgment in any criminal proceedings before any court, or any case stated or question of law reserved for the purposes of any such proceedings, to any other court in Zambia shall be deemed to be part of those proceedings:” (emphasis added).

23. Therefore, since he had authorised a private prosecution in this matter, it goes without saying that the private prosecutor has the right to file a Notice of Appeal as well. There is no law that requires that it is only the DPP who shall file a Notice of Appeal nor is it a legal requirement in the circumstances that he must give consent before the filing of the Notice of Appeal.

24. We are fortified in our humble submissions when regard is had to the provisions of Article 56 (3) (b) and (c) as material to this matter which provides as follows:

(3) The Director of Public Prosecutions shall have power in any case which he considers it desirable so to do –

(b) to take over and continue any such criminal proceedings as have been instituted or undertaken by any other person or authority; and (emphasis added)

(c) to discontinue, at any stage before judgment is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority (emphasis added)

25. It is plainly clear from these provisions that criminal proceedings including an appeal can be instituted or undertaken by any other person or authority while the DPP is at liberty if he so desires to take over and continue or to discontinue such criminal proceedings.

26. All the above Constitutional provisions we have referred to, are written in plain and clear language and must be given their natural and ordinary meaning. We therefore demand that all the players in the issues we have raised above must uphold the letter and spirit of the Constitution by not restoring Dr. Chiluba’s immunity and by allowing and respecting the rights of the Task Force in filing the Notice of Appeal which was properly lodged.

27. We therefore appeal to the DPP to immediately restore the Notice of Appeal in keeping with the strict observance of the rule of law as provided for in the Constitution.

Charles Chanda

CHAIRPERSON LEGAL SUBCOMMITTEE

AREN’T EXISTING ZAMBIAN MEDIA LAWS ENOUGH?

By Gershom Ndhlovu

It is difficult to understand on what basis the government wants to enact a law to regulate the media. This difficulty arises due to the fact that there are enough laws on statute books that do so and some, if not most, of them pre-date Zambia’s independence in 1964.

Vice president George Kunda recently told journalists at a meeting with media organisations representatives that the media should give government a framework of their proposed self regulation failure of which would force government to enact its draft law to regulate the media.

The government appears to be motivated to change the law because of the privately owned The Post newspaper which always seems to find fault with President Rupiah Banda and his government and accuses the paper of “twisting” facts. Matters recently came to a head when ruling party supporters resorted to beating up Post journalists and those from other media organisations who failed to produce identification cards.

In his determination to cripple The Post, President Banda ordered the arrest of Post News Editor, Chansa Kabwela for sending a picture of a woman giving birth outside the University Teaching Hospital, the biggest hospital in Lusaka, at the height of a debilitating strike by medical and paramedical staff countrywide.

But for those who followed media and related laws in Zambia know that, first and foremost, the Zambian Constitution’s Part 3 on the Protection of Fundamental Rights and Freedoms of the Individual guarantees the protection of freedom of expression.

Article 20 of the Zambian Constitution of 1996 provides that”(1) Except with his own consent, a person shall not be hindered in Protection of the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.

“(2) Subject to the provisions of this Constitution, a law shall not make any provision that derogates from freedom of the press.

“(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision- (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or

(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; or

(c) that imposes restrictions upon public officers; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.”

Going by the above article, the Constitution protects against passing legislation that has the potential to take away freedom of expression and, as such, the passage of the proposed law announced by government through Mr Kunda would clearly contravene the supreme law.

Anyone aggrieved by the media by way of reportage can fall back on the Defamation Act Cap 68 through civil courts. The Act provides in Section 3 that:

“In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

The Act also states what defence those sued for defamation can give, notably justification and fair comment.

The government and the Media Ethics Council of Zambia (MECOZ), under the present circumstances in which there is heightened acrimony between the government and certain media organizations, should publicize and encourage the use of this Act. There would be no better regulation than the use of the Act for erring media organisations to be taken to court.

Ironically, it is the delays of the dispensation of justice in the courts of law under this Act that the formation of MECOZ was mooted because media practitioners who gathered at Andrews Motel in Lusaka in 1998, felt that defamations cases took very long to be determined in the courts of law. With the establishment of MECOZ, it was hoped, adjudication would be done quicker outside courts. Whether MECOZ, which The Post has refused to be part of, is doing that or not is something else.

The government equally has recourse to Cap 87, the Penal Code Act which, among other things, provides under section 191 that “any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed "libel".”

Section 192 states that defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. It is immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead. There is a proviso, though, that prosecution of libel relating to a dead person, consent must be given by the Director of Public Prosecutions.

Section 193 further states that “(1) A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed, to be dealt with, either by exhibition, reading, recitation, description, delivery, or otherwise, so that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.

“(2) It is not necessary for libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means.”

Again, it is difficult to understand why and how the government is hesitant to apply the law when some of its officials feel that newspapers, radio and TV stations, and indeed, other means of communication are deemed to be committing libel.

Cap 161 Printed Publications states that no person shall print or publish, or cause to be printed or published, any newspaper until there has been registered at the office of the Director (of the National Archives) at Lusaka the full and correct title thereof and the full and correct names and places of abode of every person who is or is intended to be the proprietor, editor, printer or publisher of such newspaper, and the description of the premises where the same is to be published.

Any person who contravenes the provisions of this section shall be guilty of an offence and liable to a fine not exceeding three thousand penalty units.

There is equally Cap 111, the State Security Act which spells out sanctions for communicating information prejudicial to the safety or interests of the Republic. Most of the offences under this Act carry a minimum term of 25 years.

What better means of regulation can anyone talk about if not the laws stated above and a myriad others that need to be unearthed? Is the new law going to proscribe lawyers, accountants, teachers and ordinary citizens who have no formal journalism training from expressing themselves through the media, or for that matter, owning media companies? Does the government want people to apply for accreditation to perform what is guaranteed them in the Constitution?

I suppose that Mr Kunda, Ronnie Shikapwasha, the minister of information and broadcasting as well as the executives at MECOZ would do well to look at existing laws instead of going through the expensive motion of making new ones which will fall into disuse at some point or other.

**This article appeared in the Sunday Post of August 16, 2009.

CULTURE MISUNDERSTOOD BY ZAMBIAN POLITICIANS

By Gershom Ndhlovu

In Zambia, the word culture especially as spoken by politicians, is associated with ceremonies such as the Kuomboka of the Lozi in Western Province, Mutomboko of the Kazembe Lunda in Luapula and Nc’wala of the Ngoni in the Eastern Province.
As it has come to be part of the tradition of these and other ceremonies observed around the country, all manner of government officials ranging from the President himself, to District Commissioners, mayors and council chairmen, officiate at these functions which are in some cases tourist attractions in themselves.
For instance, at last month’s Mutomboko Ceremony President Rupiah Banda said culture played a very important role in developing the nation, pointing out that it was the source of strength and unity and that the government had come up with a deliberate policy to promote culture in the country.
President Banda also disclosed that the government had budgeted for K150 million for the construction of a cultural village in Luapula Province. Once constructed, the Mansa Cultural Village would provide a venue for musicians, actors and craft entrepreneurs to showcase and exhibit their works which is good in itself.
The question, however, is: can culture be compartmentalised just to mean matters of traditional ceremonies which are at par with any other carnival held in different parts of the world such as the Notting Hill Carnival of London, Mardi gras in New Orleans in the USA and the Brazilian Carnival, probably the biggest on the globe? Indeed, these ceremonies in Zambia, or carnivals in the rest of the world, have become a part of the wider culture of the places in which they are observed.
By its very nature, culture is a difficult term to define but scholars such as Craig Storti who has written among other books, Figuring Foreigners Out and The Art of Crossing Cultures, describe it as the shared assumptions, values, and beliefs of a group of people which result in characteristic behaviours.
Most, if not all, of the cultural traits that people exhibit are learned from their family surroundings, their immediate society and nation at large. These define how individuals view and react to not only other people of other cultures but also in other cultures in which they find themselves through work as business people, diplomats or indeed as tourists or students.
Harry Triandis in his book, Culture and Social Behaviour, writes of culture as providing traditions that tell people what has worked in the past and makes it easy for humans to pick behaviours that may work again in the present.
Put simply, culture is a way of life of a people and is something that is never taught as such, but something that people pick up in the socialization process in their community. It is, in other words, a catalogue of “dos and don’ts” of a group of people, ethnic groups or whole nations.
It is my argument that culture does not start and end with the Lozi celebrating the Kuomboka in April when their king migrates from the flood plains to higher ground, or when the Kazembe Lunda celebrate their conquest of other ethnic groups some two or so centuries back, or indeed, the Ngoni Paramount Chief tasting the new crop in late February of every year.
Culture is all things, including language which is obvious, that make a Frenchman different from an Englishman, or those social characteristics that make a Finnish different from an Italian, and closer to home, those characteristics that a Luvale exhibits and observes that a Lenje does not; things that a Tonga does and a Tumbuka does not. This is the reason why, strictly speaking, it is difficult to talk of a Zambian “culture” which is homogenous to all the 73 ethnic groups.
All ethnic groups tend to withdraw into their cultural laagers at some point, especially when observing rites of passage such as chisungu when girls come of age, marriages and funerals. You often hear people say “we don’t do this where I come from.” It is also not uncommon for a man or family to engage a friend from a particular ethnic group to negotiate on their behalf if he is marrying from that friend’s ethnic group. This is all about culture.
Apart from the common everyday interactions that are taken for granted, culture is embodied in pursuits such as literature, (the English, for instance, celebrate William Shakespeare as the greatest bard that ever lived), music, architecture, museums and other areas of human endeavour.
It is also around these pursuits that cultural industries revolve such as the film industry reflected through Hollywood, broadcasting houses such as the BBC, the book and newspaper publishing industry, the multi-billion dollar music recording industry of the West. The pervasiveness of the western cultural industries has swamped other cultures, particularly in Africa where people want to imitate what they have watch in cinemas, on TV or read in newspapers and books.
When cultures clash people talk of a “culture shock” which Esprit Global Learning, a company providing cultural coaching services describes on its website as “…an internal response to being in a “strange” culture with no cultural guideposts or familiar cues of one’s personal, social, cultural, physical and business environment.”
Knowledge and appreciation, or the lack thereof, of other people’s cultures could equally lead to the success or failure of business deals. For instance, how a person treats a business card, or meishi, of a Japanese businessman upon being given one determines how the deal goes from there, whether it succeeds or not.
Similarly, most development assistance by western bilateral and multi-lateral donors fails in most areas because the implementers do not take into account local cultures, customs and traditions and try to transplant their own cultures, traditions and customs on recipient communities.
For culture to play its rightful role in Zambia’s social, political and economic spheres, there is need to move away from the idea that culture and related issues should only come alive during cultural ceremonies, but it should be incorporated in all spheres such as tourism and other economic activities by especially understanding cultures of foreigners that Zambians interact with.
Multinational corporations such as Disneyland Incorporated have learnt their lessons when they have tried to transplant their American modus operandi onto other cultures. The best example is Disneyland Paris which nearly collapsed because the French felt that it did not meet their cultural expectations.
Culture in Zambia needs to be understood and appreciated in its totality rather than in piecemeal fashion when it suits the politicians. Similarly, developing cultural industries would not only preserve our diverse cultures, but would provide jobs for a lot of Zambians who otherwise have to depend on elusive foreign investors for their existence.
*This article appeared in the Zambia Daily Mail of 7th August, 2009.