By Elias Munshya wa Munshya:
Article 34 of the Constitution of the Republic of Zambia 1991 (as amended in 1996) contains the notorious “presidential parentage” clause, which among other things states that for one to be president of Zambia both parents should be “citizens of Zambia by birth or descent.” Following questions that have been raised concerning the eligibility of Zambia’s vice-president Hon. Guy Scott on whether he qualifies to hold the office of vice-president or whether he qualifies to stand for the office of president, I wish to conduct an exegetical study of current Zambian constitutional law. This study will show that if Article 34 is read together with the Supreme Court’s ruling in Lewanika and others v Frederick Chiluba, Guy Scott and many others would qualify to stand for the office of President of the Republic.
In the context of a republic such as ours, a constitution is the supreme law of the land. Constitutional supremacy means that the constitution is the tenet by which all institutions of government are governed. It also means that any law made by the legislature that is inconsistent with the Constitution can be struck down. The role of striking down a law that is inconsistent with the constitution is a preserve of the courts. In our context, it is the High Court and the Supreme Court that have the powers to declare any given law null and void if it violates the constitution. However, the Zambian courts do not have the powers to strike down any article in the constitution. The only power they have with regard to the constitution is the power to interpret it. The extent to which the power to interpret actually goes into questioning or even striking down a constitutional article is a philosophical one. All lawyers and jurists within the common law systems at least would agree that the consequence of judicial interpretation sometimes does go into judicial legislation. In other words, even if judges claim to only be interpreters of the law, the consequence of their interpretation might lead to subtly altering the law.
The consequence of judicial interpretation means that a constitution like we have in Zambia is derived from several sources. First, our constitution is derived from a written physical document, which was passed by our parliament in 1991 and amended in 1996. What that document contains is our constitution. However, that document alone does not constitute Zambian constitutional law. A correct view of the constitutional law of our republic therefore should be found in that document as well as rulings of the High Court and the Supreme Court that have interpreted some sections of that constitution. It is important to note here that Zambians should pay particular attention to judicial rulings because they as well as the constitutional document comprise the constitution of the Republic of Zambia. If someone therefore asks you what the constitution says about “presidential parentage” you would be in order to quote Article 34 (3) (c). However, if you have to correctly interpret this article then you must refer to the rulings of the courts on this matter.
What this means is that Article 34 (3) (c) the famous presidential parentage clause should be interpreted within the ambit of judicial rulings. But why are judicial rulings important? First, judicial rulings are important because they become law. In law, through the principle of judicial precedence, when a higher court in a hierarchy rules on a matter all lower courts are supposed to follow that precedence. Consequently, what the higher courts rules on a matter becomes law with regard to that matter under consideration. Second, court cases are important because they show the development of our laws and the constitution. Third, judicial decisions are important because constitutionally, it is the judges who are final arbiters in legal, equitable and constitutional matters. Every lawyer or jurists worth his salt, therefore pays particular attention to court rulings.
This brings me to Article 34 (3) (c). What it says seems simple: a Zambian presidential candidate must have parents who are Zambians by birth or descent. But the next question is, what does this mean? Well this article can mean different things to different people. This article contains some concepts or ideas that we take for granted but indeed would require a tome to interpret. Concepts such as “parent”, “birth”, “descent”, or even “Zambia” could mean different things to different people. But if we are to remain faithful to the rule of law, then we must defer to the courts a legal interpretation of these concepts. If we are to remain faithful to the rule of law in Zambia then we must take what the courts have ruled on this matter as the correct interpretation of the law.
The meaning of Article 34 (3) (c) was adequately provided in the Supreme Court case of Lewanika and others v Frederick Chiluba. In consistent with the constitutional doctrine of stare decisis it is important that lawyers and jurists give adequate respect for this ruling for it helps us interpret the constitution. In fact, Chiluba is a constitutional milestone.
The Chiluba case is an important constitutional case. Since the Supreme Court has not reversed it, it remains law and is consequently part of Zambia’s constitutional law. But what was this case all about? In 1996, the Zambian parliament amended the Zambian constitution and among other things included the “presidential parentage” clause in the constitution. At that time, it was widely believed that parliament passed that law to disqualify President Kenneth Kaunda from standing since Kaunda’s parents are believed to have come from present-day Malawi. Indeed in the 1996 elections, Kaunda boycotted the elections and urged his UNIP party to abscond. Chiluba and his MMD contested the 1996 elections and other parties that include Dean Mung’omba’s party and Agenda for Zambia a party led by Inonge-Mbikusita Lewanika and his brother Akashambatwa. These elections were conducted on the newly amended constitution.
After the elections however, Chiluba won beating his closes rival Dean Mung’omba by a wide margin. Lewanika and others petitioned the Supreme Court asking the court to overturn Chiluba’s election as president. They contended among other things that Frederick Chiluba could not be president of Zambia because he did not satisfy Article 34 (3) (c) of the Constitution of Zambia. Lewanika and others contended that they had evidence that Chiluba was not born in Zambia and that his parent (especially his father) was not Zambian at all.
The ruling of the Supreme Court on this matter is very significant because in it, the court interpreted Article 34. Additionally, in this ruling the court even went to the extent of criticising parliament’s law making rationale and logic. For those who know constitutional law, this criticism is indeed remarkable and quite unusual. But in unpalatable language, a full bench of Supreme Court held that through Article 34 parliament had created problems for Zambians in the future. And considering what is happening now barely a decade after the ruling, the Supreme Court judges indeed were prophetic.
First, the court held that a Zambian like Chiluba would still satisfy Article 34 even if he were born in a neighbouring country like Congo. If it were shown that Chiluba was a British protected person by the time of his birth and that he “ordinarily” resided in Zambia at independence, he would satisfy the requirement of being a Zambian by birth or descent. Using this rule—it means that all those people like Kenneth Kaunda and Guy Scott who were ordinarily in Zambia at independence and were British protected persons satisfy the requirement of being “Zambian by birth or descent.”
Second, the court had identified serious problems with the requirement that a presidential candidate’s parents should be Zambians by “birth or descent”. The Supremes remarked that this law would present serious problems for the future. In essence they ruled that, this article couldn’t apply to Zambians whose parents were born before 1964—before there was a Republic of Zambia. Essentially then, people like Chiluba (born 1944), Michael Sata (born 1944), Rupiah Banda (born 1943), Guy Scott (born c.1940) and or Kenneth Kaunda (born 1924) cannot produce Zambian parents. This is because by the time that the parents of these people were born in the 1800s, there was no legal or constitutional entity known as Zambia. As such, Banda, Kaunda, Guy Scott, or Sata cannot produce parents who are Zambian by “birth or descent.” Sata’s father or Rupiah Banda’s father were not born in Zambia, and they were not descended from Zambia—Zambia itself being an entity born in 1964 and whose citizenship requirements were set out in the 1963 constitution.
[pullquote]Guy Scott himself has equally concluded the wrong way by claiming that he cannot be President of Zambia. Nothing is further from the legal truth; in fact according to law Scott does satisfy the requirements.[/pullquote]
Third, the Supreme Court then addressed a very interesting phenomenon that indeed would apply to Guy Scott. How does Article 34 apply to a white Zambian? In clear language the Supreme Court ruled that satisfying the articles of the constitution have nothing to do with the colour of one’s skin or tribe. In fact, the ruling even went to give an example of an ethnic Chinese. Essentially, the court ruled that if a Chinese was ordinarily resident in Zambia in 1964 and acquired Zambian citizenship at independence Article 34 should not exclude him from standing for the office of president. Additionally, in a rather comic way, the Chinese example was again used—the Supreme Court painted a hypothetical situation and said that an ethnic Chinese child born in Zambia post 1964 but who gets adopted by black Zambian parents would still qualify since he too can claim that his parents were Zambian by birth or descent. This made the Supremes to ask a rhetorical question, so which “parentage” is parliament talking about here? Is it biological or is it adoptive parentage. From the perspective of the judges clearly Article 34 was rather unimpressive.
Keeping with the arguments above, it is my conclusion that notwithstanding Article 34, Hon Guy Lindsay Scott can legally satisfy the requirement of Article 34 and can in fact serve as President of the Republic of Zambia. Unless overruled, the case of Lewanika and others v Frederick Chiluba is law and therefore applies to Guy Lindsay Scott.
The Attorney General of the Republic of Zambia is therefore wrong at law by advising that Guy does not meet the requirements of Article 34. Clearly, if Article 34 were read with the ruling of the Supreme Court, the Attorney General would come to the same conclusion as I have done. Guy Scott himself has equally concluded the wrong way by claiming that he cannot be President of Zambia. Nothing is further from the legal truth; in fact according to law Scott does satisfy the requirements.
Guy Scott himself said he cant. He also said his lawyers told him so. Please mister fake writer, write about scrap meal which you are familair with
I dont know Peter Cool whether you are a lawyer but the “fake writer” is using the Supreme Court Judgment on FTJ and by the way, it is a better analysis than Malila’s emotional statement
tell kunda, to go and see his doctors soon, for his physical and mental checker up. period.
Ok – so even if he qualifies – and I do not mean to be racist in any way – BUT in modern day Africa, it would be ‘politically incorrect’ to have a white presido ruling in a predominanly black society. I love ba Guy and think he should remain VP, but definately not presido – Africa is not yet ready for a white president!!!!
What of in “modern day America”???????
Janet C YOU ARE SERIOUSLY SICK!!! Yes in Modern Africa, why are you still residing in the stoneage???
Does that also apply to modern day USA, who gave you a keyboard to type on you halfwit!!
So if he was black it would be ok? That is to say if Obama was white he would be the best president USA has ever had.
You “don’t mean to be racist” and yet you go back to the mother of all racism—-NOT YET READY for SO AND SO to be this or that.
Or people are not yet ready to do A,B,C.
Or certain people can’t be allowed to hold this or that office or possition because some immaginary group of ignorant individuals haven’t approved it yet!
How rediculous is that? To make matters worse you are a woman (going by your name) who has historically suffered double jorpardy (racism and sexism) by such mentality
Uli chisushi iwe ai??? What the Hell are you talking about? You shallow thinking fool!
Akan-your!!! Guy Scott was born in Zambia!!! Afyaliilwe mu Zambia we mbushi we!! Just because he is White does not penalise him from equal rights Zambia has to offer to it’s Citizens!! What about Obama?? He is Black and American President! How Racist can you be! We chibwa we!!! Barbaric fool!
waste of space on the LT hard drive. what G Kunda is saying is, if VP Guy Scot is allegeable to be VP why is he not acting when the president is not in the country? its not a racist statement!!! the writer should write about that.
WHAT IS WHITE FOR SURE? , ARE WE STILL LIVING IN THE PAST. WE ARE EVEN SUPPOSE TO SHOW OFF THAT OUR COUNTRY IS NOT ONE SIDED.
WE DO NOT LOOK AT COLOR. KUNDA IS JUST A RACIST .
The parentage clause is not ”Notorious”!!! Don’t just look at Guy Scot. Think about the Chinese, Congolese e.t.c whose loyalty is still to their parents country of birth. As for Vice President Scot, he qualifies to be in that position but the constitutional clause of the President should be left the way it is. Lest we get ruled by a Rwandan or Nigerian.
Guy Scott I would vote for you anytime…
Reflect on what Munshya is saying. The truth cannot go away. There is substance in this article. Elias is being objective, and has divorced himself from his emotional attachment. If Guy could not qualify, Munshya would have said so through his item, and all those who have read his other writing on Zambian politics can readily say “what a change of mind”!, but no, we can’t say that because what he has written here is clear objectivity itself.
Very clear indeed but the fact that parliaments seems to think it’s above the court of law of the land they disregard the ruling. It is plain simple as you have explained in your article, there’s need to or parliament to understand what implications such rulings have on matters o national interest. The MMD Gov obviously did not understand what the clause means and can how it could be interpreted in the courts. This is the problem of doctoring such an important document to stop a few people contesting fro the highest office in the land. We need a new constitution which is well thought and should be inclusive.
I do not trust the Zambian judicially unfortunately?….some judgments have been fun in the past and what makes you think this not one of them.
Here is a situation- My friend’s parents(father) was born in Zambia from one foreign parent(his grandfather) and the other parent(grandmother) fully Zambian. His other parent( my friend’s mother) is 100% foreign. He (my friend) was born, lived and grow up in Zambia.. Does my friend qualify to stand as the President of Zambia???
Mr learned GK is indeed showing a side that is in the past. In any gov`t of the day, the got protocols that they follow, if GK got problems with what is going on in PF, he can jump ships which is like a daily bread for politricks Misters.
#8 GUNDIX
I have to agree with you. The headline got me off-kilter. I almost threw up on the headline, but upon following the author points and having read his past articles, I indeed agree that he has been objective and indeed his points does make sense and it will be interesting to see our learned friends from the law profession comment on this.
Having said that #8 Budwiser needs to be listened and am in the camp that says this is about Why isn’t Guy Scott Acting as a president When Sata is out of Country? That is the big question. Why wont somebody answer this? And This is what has triggered the whole debate. Journalists, please write about that and ask questions about that. THAT IS THE ISSUE.
Very true, i also don’t understand why nobody is asking this question and nobody is telling or answering it
No, the question you have to ask yourself is simple: How many times has Sata been out of the country and the VP was present in Zambia and the instruments of the presidency were given to someone else? Answer this question fairly & honestly and you discover that you are probably making a “mountain out of a molehill.”
If I recall, Sata has been out of the country twice. The first time he went to Uganda, and VP Scott was out of the country (Australia if recall correctly). The second time he traveled to South Africa, VP Scott was somewhere in Western province. I am sure if you check the records of previous MMD administrations, you will find similar instances when such things occurred too. So for GK to turn this issue into something bigger than it really is is unfortunate!
Well said Claudius, come on guys lets not base issues on the colour of our skin. We have been fighting issues of racism for a long time and I would have hoped that by now people could see somebody for whom they are and not what they look like (yellow, green, black, brown, white etc)
The article is well written but there is only one problem. Guy Scotts Parents are not Zambian thats why he himself says he cannot qualify so the Chiluba Vs Lewanika and others does not come in in this instance.
Correct you are the only one speaking sense. The author makes an assumption that because Guy Scott is Zambia by birth, then he qualifies. It ignores the issue of his parents
Come guys the article clearly says that anybody whose parents were born before 1963 are not Zambian since the country did not exist but should not be excluded. This is why Chiluba, Kaunda, Banda or anyone including my parents can stand since their parents were born in British territories or other. This same interpretation applies to our Vice president.
GK atumpafye instead of ukwikala ziiii he is biz making noise.fi MMD fye awe very corrupt minded
Zambia is beyond colour. We do not see it like in other countries. We only see human beings. That is why we are, in our own way, more advanced than some countries perceived as advanced. I come from Mwachisompola and black like the bottom part of a village cooking pot but I support Guy Scott remaining as Veep. The man is objective and focused. A true Zambian. Let`s just remove that disciminatory clause in the constitution. The person should only be a Zambian by birth. Kwamana bakwesu we. Oloye!
I would vote for Guy not based on race or political party but personality. This man can really help us to develop Zambia. In his capacity as VP he may be restricted due to the type of the leadership at the apex. He does not qualify under the current constitution however this could be amended.
@ MMD CHIEF BOOTLICKER, YOU ARE AROUND ? YOU HAVE BEEN LICKING YOUR WOUNDS SINCE MMD LOST, WELCOME BACK !
WILL THIS GOVERNMENT EVER GOING TO START DEVELOPING THE COUNTRY, WHEN ALL THE POLITICIANS ARE FOCUSED ON PROSECUTING/PERSECUTING FORMER LEADERS? ONE WOULD THINK WE HAVE JUST COME OUT OF A BLOODY CIVIL WAR. WE HAVE INSTITUTIONS LEGISLATED TO DEAL WITH MATTERS OF CORRUPTION AND THE PRESIDENT SHOULD FOCUS ON ECONOMIC DEVELOPMENT. PEOPLE ARE SUFFERING AND WHETHER YOU WIN OR LOSE YOUR ALLERGIC TO CORRUPTION CRUSADE, IT WILL MEAN VERY LITTLE TO THEM IF THEY CONTINUE TO SEE YOU AND YOUR GOVERNMENT NEGLECT TO PAY ATTENTION TO MORE PRESSING ISSUES. ALREADY THEY ARE MISSING RB WHO WAS OPENING THIS AND THAT DEVELOPMENT PROJECT MONTHLY. HOW ARE MOBILE CLINICS DOING? SEEING THAT NO ONE IN GOVERNMENT HAS SAID ANYTHING, I ASSUME THEY ARE DOING JUST FINE. MISS YOU RB AND MMD
Law is crazy and obviously not normal.
Let me stick with my trade of facts and number.
#14 read the article..not even your parents are Zambian assuming they were born before 1964. as for Munshya very good article.Its crystal clear Guy Scott qualifies to be Zambian president.Someone pass on the message to Michael Sata .
I NEED TIME TO READ AND UNDERSTAND THIS ARTICLE. BUT ALL THE SAME GUY SCOT AS VEEP IS OUR COUNTRY’S PRIDE. WE ARE NOT RACISTS. KUNDA GEORGE SHOULD NOT CLAIM TO BE ZAMBIAN, HE IS SUCH A SHAME.
meant numbers
Nice article Munshya, very thoughful analysis. The technical experts on the constitution must take note. This clause is indeed problematic.
GUNDIX #8 you write ‘…. If Guy could not qualify, Munshya would have said so through his item,….’
You remind me of Boxer talking of Napoleon. Because it comes from him, it is right!!?? A vice assist the boss, especially in his (boss) absence. GK is asking why did/is Guy not acting? GK said they would ‘study’ to see whether Guy does not qualify. Govnt response on this issue is just to tell us why Guy did not act…period
#18 Mashyabe
What do you mean welcome back. I never went anyway and I have been blogging since all along. It is just that your are perhaps suffering from “Mashyabe” and thought in your mind that with change of govt I will be fired and become a destitute on the streets, and are now in shock to see me blogging as usual from the base I have always blogged from.
Am MMD through and through. Can a Leopard change its spots? No!! And that is me with my MMD. And you watch us make history by becoming the first party on the African continent to bounce back into power. Watch us after the convention. We are coming after you ..
WHEN ARE WE GOING TO STOP SINGING THIS SONG OF WHITE AND BLACK.
AS BLACKS , WE CAN MAKE OURSELVES MORE HAPPY, THE SAME WAY THE WHITES DO. ITS JUST DIFFERENT SKIN COLOR, SAME HUMAN BEING. I PERSONALLY HANG AROUND WHITES, I DO NOT SEE ANY COLOR DIFFERENCE WHEN IM AROUND THEM, I ONLY THINK THAT, IM WITH MY FELLOW HUMAN BEINGS.
Viva Guy Scott. You are more Zambian than some of ba ngwele who call themselves Zambians. You have done more to fight for the plight of Zambians than some of these clowns mongs bene RB, Kunda, Liato, Dora busy selling assets
MMD Chief Bootlicker ????????????????. I WONDER UR THINKING. U DO NOT CEASE TO AMUSE ME.
Yes kunda dont yap too much. These a rumor that you are from Senegal
Let the Constitution crisis be sorted out
It is amazing how we hailed Barack Obama’s election in the US but then some lunatics here are saying we cant be ruled by a white man????????????????? So after all, the parentage clause most of us have been condemning is now okay because we would stand to have a white president? Does it matter whether the doctor attending to you is black, white, female, chinese or somalian?????
MMD Chief Bootlicker????????????????????????????/////////////////???????????? KEEP VISUALIZING.
@25 YOU ARE RGHT, WHY CANT THEY JUST TELL US WHY SCOTT DID NOT ACT INSTEAD OF SUBJECTING US TO ALL THESE LEGAL INTERPRETATIONS FROM PSEUDO LAWYERS? I WILL STICK TO MY ENGINEERING………………….
2016….pa bwaaaato ba Guy zoona for presido….nkhani yasila…closed chapter!!
GREAT LEGS!!!!! with respect to the article….really??!!! is it necessary, he has been minister, MP etc Just tell Kunda to get a life
Please if you have nothing to talk about leave PF alone. PF has it’s own way of running the affairs of the country that was the reason why we put them into power.HE Sata and Guy scott are very good friends and I do not see anything wrong with either of them choosing who acts where when one is out. DONT KUBEBA!
eagle- eagle DONT BE A FOOL!! WE ARE CONCERNED ABOUT PF AS A GOVERNMENT NOT AS A PARTY. WE ARE ALL ZAMBIANS AND HAVE THE RIGHT TO TALK ABOUT PF GOVERNMENT ESPECIALLY IN LIGHT OF ALL ITS BLUNDERING WAYS.
Where is Malila’s interpretation??? If he indeed he did surmise as such, WE SHOULD BE SERIOUSLY BE DISAPPOINTED that the AG could make such an interpretation, for the Supreme Court did INDEED RULE that anyone who had his feet firmly on the ground at midnight on transition from Northern Rhodesia to becoming Zambia, AUTOMATICALLY BECAME ZAMBIAN!!! NO BUT’s or IF’s !!!! LAZ SHOULD OFFER GUIDANCE on the supreme courts’s conclusion!!!
What about his parent?
Interesting article……Very well articulated.now that we have established that Guy Scott can be president of Zambia can the PF government tell us why they are scared to let Guy Scott act.Perhaps they are the ones being rascist.Why is it unthinkable to let a white man act as president.
Let Guy Scot be the vice president and if he wants to stand as the republican president in future ,let him stand.those who are saying against him,are desperate and the law is will fall on them soon.long life PF.
Fellow blogars, let us be objective. Elias Munshya wa Munshya has helped us to understand and interpret the spirit of the supreme law of our country and it is up to the Attony General and Guy Scott’s lawyers to respond. The Law Association of Zambia has also got a very big role to play with their special committee on constitutional law.
We lay people should watch and listen without pretending to be experts.
If guy Scott can be president of Zambia, than how come the US Zambian Embassy wont renew my passport. I am being asked to prove myself that am zambian. Both my parents were born in Zambia, I was born in Zambian and want to school in Zambia. Am also very black.
They have my birthcritificate to prove that am Zambian, life can be so unfair at times.
George Kunda sings and dreams the constitution in his sleep, the guy is an architect of the whole thing. He is just being a troll and the president has fallen for the bait hence mouthing uncontrollably and carelessly about vengeance which GK will use to question the independence of the judiciary when his friend’s corruption cases come up at a later date.
I LIKE THIS …..”The Attorney General of the Republic of Zambia is therefore wrong at law by advising that Guy does not meet the requirements of Article 34. Clearly, if Article 34 were read with the ruling of the Supreme Court, the Attorney General would come to the same conclusion as I have done. Guy Scott himself has equally concluded the wrong way by claiming that he cannot be President of Zambia. Nothing is further from the legal truth; in fact according to law Scott does satisfy the requirements….”
#21 , Let me make it a bit more simpler for you. in 1964 everyone who resided in the area that became Zambia was entitled to become a citizen of Zambia.HOWEVER Guy Scotts parents OPTED to retain their British Citizenship. THEREFORE Guy does not qualify to be President because his Prents where British. Do you understand now??? As for being VP i dont know of any company that will allow you to Act in a position that you do not qualify for or are not eligable for.
Bwana, you are wrong! By 1964 Guy Scott was an adult (24 years old) and chose to keep his Zambian citizenship. His parents may have opted to keep their British citizenship, but Guy Scott didn’t. What is the age of consent/suffrage in “Zambian” law? Is it 16, 18, or 21 years of age? The threshold Guy Scott had already past when Colonial Northern Rhodesia became independent. And you want to hold the “sins” of his parents on his head!? This is the same disease your learned lawyer GK seems to be suffering from—-intellectual laziness!
can malila answer @@ 44
The article is well researched , some of you bloggers lack objectivity
Now who is the dullest lawyer?………. fill in the blanks?
#42 if u r very black..then u r from Sudan!
I rarely read Munshya’s article, but on this one I totally agree with him, and #8: Grundix. Its a fantastic reflection of constitutional issues in Zambia. Sadly, I hope GK and MMD will not force Guy to withdraw from public office because he has shown the world that YES OBAMA factor is there; and PASSION FOR THE LAND, is live and kicking. I have met many Zambians; am yet to see as many PASSIONATE ZAMBIANS AS GUY. Let the guy do his job. To GUY, I SAY: Thanks for showing us passion; and its this passion for Zambia which is slowly drawing us back to Zambia. Kalebalika!!
Munshya wa Munshya,
This article makes good reading and indeed it is consistent wth the law. there was no Zambia before 1964, so how can you request individuals to have paresnt who were Zambians by birth or descent, when the candidate himself is older than Zambia???? This explanation, whether it was tailored to protect Chiluba works for Guy Scot, Hic Owner the Vice President. In a way, it is sad that we are debating this issue, everyone has aplauded us for having a white Vice President as we have demonstrated that we are a multi racial society which does not look at one’s colour, but that is wha you exopect from George Kunda, divisive figure who courts controversy. What if Guy Scot feels fade up and resigns his post, it will be sad and embarrassing, lets cage Kunda quickly!!!
1.
Who were the architects of the 1996 parentage clause? neme them…… (5 marks) marks 2. Why did they put in the constitution? ………….. ( 2 marks) 3. Name one politician who says the truth. (0 marks)
The president has powers to appoint any amoung his cabinet ministers to act in his abscence, that does not restrict him to the vice president only, if he so wishes he can even appoint the vice to stand in, that is his prerogative, no one can force him (not even the mentally poorest lawyer in Africa) over whom to leave as acting president.
The interesting thing is that a Theologian and undergraduate law student is teaching ‘learned’ Zambian lawyers and our Attorney General the basic tenets of law ouch!
I have very little respect for Zambian lawyers in Lusaka.
BUT bushe ba Guy balikwata Passport iyamutundu shani?
one zambian one nation tribe
# 14 Zambian, Please read the Munshya article again. You cannot dismiss with impunity the Lewanika and others vs Fredrick Chiluba case ruling by the full bench of the supreme court of Zambia. Then you don’t respect the laws of Zambia. Munshya has guided us to appreciate that Guy is disqualified by article 34(3)(c) but repreved by the said case outcome which concluded that both KK and FTJ qualified to contest the 1996 Presidential elections but UNIP had already boycotted the elections and rendered Chiluba duly elected.
THE ARTICLE IS SPOT ON…THE ATTORNEY GENERAL SHOULD STEP DOWN FOR MISLEADING THE PRESIDENT
you wankers you are wasting our time.ba guy was no running mate to sata.so it is not automatic for him to have the instruments of power each time the president is out of this very poor country called zombie. maybe the president has just discovered that ba guy is ambitious like ba nevers. otherwise this is a good article. Elias Munshya wa Munshya you have been objective for once.
This is a well researched and well written objective article. I would be glad if bloggers would similary use law to dispute this article instead of rushing to insults
#3 YOU HAVE A SERIOUS RACIST PROBLEM. GUY SCOTT IS A ZAMBIAN AND HE QUALIFIES TO BE REPUBLICAN PRESIDENT. LET NOT COLOUR BLIND YOU. ITS HIGH TIME SATA STARTED APPOINTING GUY IN ACTING CAPACITY SINCE THE AIR HAS BEEN CLEARED BY THOSE WHO KNOW BETTER. I AM PRETTY SURE EVEN SATA WASN’T SURE ABOUT IT- NO WONDER HE WAITED FOR THIS OPPORTUNITY FOR DEBATE.
The issue which may have caused Dr Guy Scott to say he does not qualify for election as President of Zambia may be that he has issues with having two citizenships. And so, let Hon MP George Kunda, SC, take the matter to the High Court and possibly to the Supreme court.
I need to know why Mr Sata MC, our President of Zambia, did not use Article 39 clause 1 to the advantage of letting Dr Guy Scott be Acting President. In other words, why was Dr Guy Scott, our Vice-President, INCAPABLE of being authorized to be Acting President? Did he have an infirmity or physical problem?
this guy can kill the presido, he should be carefull then, why should he say he is qualified to be president. white people are very very dengeriou ka.
a very well written article indeed . i wish all zambians could reflect on this problematic clause which has a human face of k.k and concocted by chiluba and his cronies out of fear and without foresight. It also serves as a warning to future generations not to allow presidents to tamper with the constitution for self preservation.
Follow the writer’s arguments. And #13, I am with you. There is, on the majority, a misunderstanding in the country about the law we cooked to exclude somebody. Unjust laws are difficult to understand because they are not well-thought and not needed. Such laws are like lies. The teller of lies easily gets entangled in hers own web.
There is nothing wrong at this stage for Parliament and the Courts of Law to reconcile their positions, while remaining separate and independent of each other.
At the end of the day, one who has the people’s interest at heart should be in leadership. We have noticed across the continent that the modern oppressors are African’s in leadership.
The constitution has to be supreme. Personally i think the clause that both parents should be Zambians or Zambians by decent should be amended. If you were born in Zambia, you are a Zambian who can ran for president. Most functional constitutions define it that way.
Unless there was this reconciliation, Guy can act and be President of Zambia, while at the same time he cannot be President of Zambia. Is there a tension or a paradox here?
Thumbs up #65. You have used a cardinal word ‘functional’, and can I add “progressive”?
What a prospect!
Now, I am the least likely to be racist as my partner is white, but i am astound at the idea.
Right!, so a bye election as expected in some quotas will usher in Guy Scott as president? Mr Sata will have fought the ‘freedom fighters’ as a colonial policeman and his demise would be his final blow to their wishes. I am not saying he is wrong or right now or then.
Nothing can be further from the truth. Guy Scott truly qualifies to be President of Zambia. People don’t let the skin of a person be a source of making conclusions. Guy Scott is more Zambian at heart than some black Zambians I know.
Lets stop politicking about this stupid issue with our corrupt constitution, instead lets be pround to have a first zambian white citizen as vice president in the entire Africa, we supposed to use Dr guy scott status to help develop Zambia, it would be easy for Dr scott to go to donors and lobby for developmental funds to come to zambia than George Kunda. Be pround Zambians and use Dr scott wisely.
So RB also qualifies! – why didn’t Munshya write this article last year when PF cried foul – telling RB that he does not qualify – G Kunda also in his dullness kept quiet – this article is long overdue – it would have been written last year – all this nonsense wouldn’t have arose
What tribe is Guy Scott? Is he one the 73tribes?
@Bwalya he did write and as a PF kaponya with one track mind, you ignored him. google his articles on the same
Imwe guys, the first time Sata went to Uganda, Guy Scott was in China or such place. Apa when Sata went to RSA, Guy was in Solwezi. The president needs to personally hgand over the letter to the person who will act, at the airport.
Kunda just take care of your health and nurse that ????? postive status of yours our days are numbered..
If he Guy Scott qualifies to be acting president, then why wasn’t he appointed, we want to know the reason.
Bwana, with a secret british passport he is not even eligible to be an MP let alone president. Can George Kunda please quickly start prosecuting this imposter.
Honey Rupiah Banda was not born in 1943. Wa sata!
It is difficult for a Zambian who was born before 1964 to produce a Zambian parent, yes its is true, but the question is, What is Zambia? Zambia is a territory that is set up based on colonial boundaries, these boundaries WHERE of Northern Rhodesia and Baraosteland. So any one born in these former territories is Zambian, arguably a Zambia could have also been born during the territories of the federation of Rhodesia and Nyasaland. Those born born in Europe were not part of the contention by judges on who could be refereed to be Zambian. Lets be serious, Zambian tribes do not stretch to Europe their one cannot argue that though my parents are registered as being born in Congo, there were actually subjects of Northern Rhodesia,
At the time of independence Guy Scott was in Zambia.
So would Guys Scott’s offspring qualify to be president then?
Elias well articulated, you have shamed some lawyers. Thanks for clarifying !
Guy for President
# 70 Mwiponta mukabwela. It appears GK comments has rattled the entire PF govt. The boat is rocking proof that GK is not a simple lawyer as your president puts it. Munsya’s article is spot on in tandem with the pre-supposition of GK. All what it takes is the entire PF membership to read Munshya’s views and opinion and without doubt will put you all in defence and owe Zambians an explanation. That is the beauty of democracy and this is stack with PF.
for those of us who are not lawyers we say the LAW is in the cases and A G must have forgotten to ready the Chiluba judgment.lets apply same maths before 1964 there was no zambia but Northern Rhodesia and for one to qualify as president at indepe one should have been born at least before 1930.can we comprehend now why the court held that it dont matter provided you parents were under the British protectorate.
scot is whisky zambia
Point of correction, Munshya wa Munshya do your research on peoples birth dates and don’t mis quote; Chiluba 1943, Mwanawasa 1948, Sata 1938, RB 1937 and KK 1924. We Zambians are so myopic and gullible that we are voting leaders who should be in the dust bins! GK contention all you pf fools is that if Guy Scott qualifies to VP and from Munshya’s article why cant he act as president? Why leave a junior minister to act? Is that he will be perceived that an african state in this day and age has a white man as president? If you chaps dont know that is Sata’s tactics and yet you have eyes but you cant see!
Just an after thought, was the veep waiting for someone from the oldest profession to visit that room?
Looks like the chap did not keep time and veep is desperate.
Sorry veep to have kept you looking at the Jacob Zuma, sorry shower area.
#72 Wisdom: That is something right there, that question of Scott’s tribe must be asked to HH, he knows best on identifying people by tribes.
But once heard Chief Nkhomeshya claims him.
In this day and age, it must not surprise anyone that a black man can be a Member of Parliament in Great Britain, A President in the United States of America, and a white man can be Vice President in an African Country, while a half-British and half-African can be President in a Southern or Western African State.
We have come a long way, let us move with the times!
Melanine??? No racism pliz
President Sata has demonstrated that Guy Scott is incapable of acting as President, so what is your argument Munshya? And who are you arguing with?
There is chess at play here by the PF. the strategy is linked to the arrest of RB for having ruled zambia illegally. kunda must be careful with what he says for very soon he will be saying its ok for scott because RB will be in trouble for false declarations.
Zambian lawyers please take your craft seriously, Elias Munshya wa Munshya has schooled all of you here!! To think Kunda was even VP and Legal advisor to the govt and yet fails to understand such issues is really scary.
Good article Elias, I have learned a tone just from this one article than from all the MMD “cadre lawyers” pretending to be constitutional experts. My goodness!!!!
Claudius this Kunda, has always mislead the MMD govt on legal matters and I agree that its really scary to has people like him in these positions.
This same court ruling was used during the case of RB recently. Parents born prior independence. Good writer.
IN FACT KUNDA IS MORE OF WHITE THAN GUY SCOTT.
Munshya wa Munshya, when you start pursing lips, just know that you are totally finished. Why engage in such sycophancy? Guy Scott has a good pedigree through his father but though he is Zambian, he knows where he comes from. Now a clown like you wants us to believe that article 34 means a lot of things far from what it categorically states? Get a life!!!
Bo Liswaniso the man has a point, law is a double edge sword. These MMD guys thought they were doing themselves a favour and amending the constitution to stop other from participating in Zambian elections. As it turns out that’s not the case, a precedence has been set by supreme court and its up to us Zambian to correct it.
It is quite disappointing that key players in the Law fraternity just opt to stay mute as opposed to clarifying this issue.. This confusion tricles down to the doctrine of separation of powers which Zambia fails to observe. The three organs of government do not operate effectively. Objective article indeed….wonder why non of the legal practitioners have argued from this angle. Question to ask is what was the intention of the legislature when coming up with such law? Of what benefit is it currently? Focus on the advantages and disadvantages of such law not finger pointing and raising trivial matters
#3 you’re a racist & Zambia does not need racists and tribalist like you. Africa and Zambia needs a white president. Let us admit that we blacks have failed to rule ourselves. poverty is the order of the day. Rife corruption is the order of the day. Tribalism is the order of the day. Dirty towns and cities is the order of the day. Because of the while man we now have Manda hill and Arcades shopping malls etc. What we blacks know and do is build shanty compounds and trade on the streets. Tell me, what have we black invented in Africa or in Zambia? We are consumers and we we depend on the white man’s inventions to survive. Totokanya! wilaba mu racist mwaiche.
i dont understand why black people dont want to admit that all these goodies they are enjoying its because of a white mans thinking. Black people have failed in Africa period. Zambia could definitely do with a good white person like Scott. Well put my friend
Scott why not concentrate on your pig farm and spare us from your….
kunda is from Mozambique
Gr8 legal analysis… i am not surprised that some are just given to insulting even when someone writes something sensible.
I am PF and last year, after I read Munshya’s article, I decided to read the Supreme Court judgement on Chiluba and was amazed and immediately concluded that PF’s efforts to stop RB were unfounded. What PF should have to court is the case of perjury where RB (ignorant of the same law) decided to lie under oath that both his parents were born in Zambia. I am sure it was the advice of Kunda that informed him that he was disqualified if he informe Zambians that one of his parents was NOT born in Zambia
Guy scott is white skined but black minded better than kunda
“Essentially, the court ruled that if a Chinese was ordinarily resident in Zambia in 1964 and acquired Zambian citizenship at independence Article 34 should not exclude him from standing for the office of president”
Did Guy Scott ACQUIRE Zambian Citizenship?
Yes, he did.
Munshya wa Munya mu nyumbo, why don’t you believe the concerned guy, Gay Scotsman himself? We can only believe what he tells us.
Why doesn’t this government repeal Article 34 which the Supreme Court has found to be wanting? According to that act only Elias Chipimo would qualify as he could have provided Zambian parents at birth. The rest were born of Northern Rhodesians, Congolese, Malawians, British, Zimbabweans etc. It does not help for a person to be blocked based on his parents. Why don’t we limit it to birth and let this be tested by popularity?
little knowledge of the law is dangerous, little understanding of the law is even more dangerous. 1. Granted Guy Scott is a Zambian. But were his parents Zambians by birth? where they born in the territory of northern Rhodesia or Zambia. being a white man Guy Scott is definitely not a Zambian by descent and neither are either of his parents. There is no argument here.
2. One of the elementary lessons in the course of legal process which is usually taught in your first semester in law school is learning to distinguish the difference between the ratio decidendi and the orbiter dicta of a case. The dictum of one judge against the full bench of the Supreme Court would not be binding as the author would like us to believe. The author places much emphasis on the orbiter dictum in that case.
Leave Guy scot alone up to now you still practice racism,the your best place of stay would have been the former apartheid south Africa but alas the Boers have changed………..
Good article. Good research. I agree with the writer.
Phewww!!! well written article, makes some sense to me, i guess our lawyers dont even understand our constitution very well or what ever goes with it as far as this Article 34 is concerned or else Sata would have been advised correctly, even GLS has disqualified himself from being a republican president, am glad am an Agronomist and intend to stay that way.
the question still remains, why doesnt GLS act as president when MCS is out of the country, or are we going to be told that according to the constitution the president can choose any one to act as president when he is out, or MCS and his advisors misunderstood Article 34 such that they could not even put GLS to act as president (mind he is not contesting for it here), can someone enlighten me please.
Munshya, your analysis is fair. & you have harvested some gullible fans here! You are their genius.
However, you have erred in concluding that Scott is elligible to be president. His parents were never Zambians at any time, not even after independence. They retained their Scottish citizenship. Do you think Scott is stupid to accept the status quo?
Guys this article is irrelevant since Guy Scott is not standing for election as president. Maybe Munshya wa Munshya should re-release it in 5 years.
@Speare you crack my ribs, was anybody a Zambian before independence? And there has never been “Scottish citizenship” ni “British” ka…
Gentlemen, don’t mind that moving coffin kunda is sick in the head and should be taken to a mental hospital before we could lose him please.
This is an AA+++ article, but the question is why was Scott not acting?
sol says:it is well thought article,it only takes one who understands constitutional law to really get the meaning of certain rulings,like it has being said judicial ruling becomes law which is followed by all lower courts.if Mr.Guy himself does want to be president its kool.but he qualify s.Gk is loosing it someone help him……
Ok i am not that political, but i’ve read thru’ yo comments some of u people are sayin you’re not racists, i think you’re big tym. If you ready what Munshya wrote, Hon. Guy L. Scott is a Zambia period! Can u get that in yo heads(No Offense), the man was born in Zambia before 1964, there was nooooo Republic of Zambia anywhere, when it was created he was there, so he is a Zambia, i’m pretty sure for bamudala ba Sata knew this when he was appointin him, so let it go people #arrgghh
From today onwards let Dr Scott act as Presido whenever the cobra is away after all he is the VP.
43@jay jay. Dont hate GK for bringing in an important clause which any serious government should try to solve. GK was not the arhtect of that ” notorious” clause in the consititution but the current Presido Sata , FTJ were the men behind this clause. The time this clause was being sneaked into the consititution GK was busy practicing law. Sata & Nawakwi danced on the parliament floor when this clause was passed. So my friend it is like sppiting into th ocean and expect the ocean to break the banks. The problems is we can not use the same people (brains) who created the problem to solve the problem.
if guy scott qualifies, then why hasn’t the cobra left him in charge? there must be a catch some where……..
yeah, but why hasn’t the cobra left him in charge so far?