By Brig Gen Godfrey Miyanda
My statement follows the swearing in of the judges for the Constitutional Court by President Edgar Lungu. I am alarmed by some of his comments that have rung an alarm bell. He directed the said judges, inter alia, to prioritise the interpretation of the Grade 12 clause. He declared to the judges that ‘Grade 12 is what the people want’, thus purporting to give evidence! If this be the case why is it necessary for the judges to interpret what the people want?
I write this open letter to urge the citizenry, especially the legal fraternity (lawyers, judges, including magistrates), not to be intimidated but to be on the lookout for and speak out against threats to the independence of the judiciary. Over the years I have written on this topic; I reiterate those concerns because we seem to have now entered the danger zone. I call on the legal fraternity to get involved and stand up and be counted because there is an obvious scheme by those in authority to interfere with and undermine judicial independence. Granted that in keeping with certain protocols and professional training, many legal persons are always quiet even in the face of obnoxious breaches of the Constitution and other laws, especially by those in authority.
I concede that the legal fraternity understand better the concept and importance of judicial independence. But in a previous ‘Open Letter to the Legal Fraternity’ I had asked some of the following questions “As a young lawyer how can you be proud to stand before a judge, to fight for your client, when the same judge has decided the case outside the court room due to interference of one form or another? As a judge how can you have a free conscience when you have convicted or found liable a person who is not guilty or liable, simply because you are compromised or intimidated? Do you legal people still believe that the Blind lady standing in front of our Courts, blindfolded, is still blind? Or is the Lady’s blind-fold a see-through? How can you as lawyers proudly stand before a judge who has already made up their mind and argue a case that is predetermined? How can you stand the situation where Big Brother is breathing down the necks of judges to do the bidding of the Executive? What is the difference between you and a party cadre who shouts praises in support of wrong decisions just because of partisan or party loyalty? ”
During the run up to the period of passing the two Constitutional Bills, the Executive were less than transparent when they submitted to the Parliamentary Committee on Legal Affairs that they had NO POSITION on the Constitution – this abdication of responsibility is tantamount to treason. The mishandling of the Constitution is President Lungu’s legacy permanently etched in the annals of our Zambian legal history; this bleach will never be cleansed, no matter how many swearing-in-ceremony speeches are made to clean up the mess. The deed is done and by the hand of President Edgar Chagwa Lungu! There are serious implications for the President not sorting out the mess he has created by signing or assenting to the Constitution with his eyes closed.
For instance, should anyone challenge the qualifications of the newly sworn in judges of the Constitutional Court who will interpret whether they are qualified or not, since they themselves will be judges in their own cause? The Constitution has included “proven integrity” as one of the qualifications for a judge appointed to the Constitutional Court. How is this qualification to be proved if no “evidence” is provided to the MPs? Yet President Lungu had a chance to apply his mind to all the clauses and to reject what had to be rejected without being a Pontius Pilate as he now seems to be – “that is what the people want”! We are at a stage where battle lines must be drawn and all lawyers speak out when threats to the independence of the judiciary, and hence to their profession, are noticed. We want, nay, we demand for judges (and even lawyers) that are NOT only qualified but are bold as a lion and blind as the Blind Lady. There is absolutely no excuse to fear the Executive; judges have security of tenure, hence they must always act professionally and boldly!
The President has no justifiable reason to complain, if fellow politicians and other citizens speculate, because he has refused or neglected to engage fellow political leaders, until after being prompted by His Holiness the Pope, followed by his visit to Chilonga Mission, where he “revealed” that he had agreed with the Catholic Bishops to hold a meeting with other political parties.
I hope the Bishops have seen through that impolitic announcement as a vote-seeking, public relations stunt! Why does our president avoid fellow Zambian political leaders? Why does he need the intervention of the Catholic Bishops or any other clergy for that matter? He has not provided leadership in this regard throughout the constitution-making process, up to and including the period of the Assent. In fact it is clear he signed the Acts with his eyes closed. Hence speculate we must, for the sake of sensitising the public and to ensure that they are alert and ready to defend the Constitution. We need direction; we need dialogue but not threats and poaching of MPs.
The concept of Separation of Powers is well accepted, at least in Western jurisprudence. This concept, in its modern application, aims at avoiding or controlling dictatorial tendencies, by ensuring that none of the three arms of government (namely the Executive, the Legislature and the Judiciary) should control any of the other two. This is to avoid arbitrary rule. In theory the idea is to ensure that there is a balance between the said separate organs of the government. In Practice it is not so distinct or clear because of the tendency, usually, by the Executive to try to ride over the other arms.
Our independence journey has revealed and confirmed that when a system is imposed liberties are lost. And it has also confirmed that individuals who ascend to public positions of authority almost always tend to become dictatorial because as has been stated by an eminent scholar and lawyer “power corrupts and absolute power corrupts absolutely (Acton)”, hence the justification of checks and balances in the form of opposition political parties and increasingly, now, Civil Society voices.
In conclusion I declare that no judge should be directed as to what subject matter to prioritise or what judgement to deliver or not to deliver. As a further illustration, the President recently announced in Petauke that he was going to dissolve Parliament in May when there is no such power in the Constitution that he assented to on 5th January 2016.
Ordinary mortals believe that the President has such powers when not. Such tendencies must be nipped in the bud before the cancer becomes accepted as the normal practice just because the President has spoken. As I pen off, I cannot believe that I am hearing President Lungu (lunch time news) castigate State Counsel Musa Mwenye while swearing in Judges of the Supreme Court. Why, oh, why? I reiterate that judicial independence must be preserved and protected at all times because, barring corruption and/or other improprieties, there is no immediate substitute for our current judicial system.
GODFREY MIYANDA
BRIGADIER GENERAL,
CONCERNED CITIZEN
[22ND MARCH 2016]
Well return article general.I will always cherish your contribution.They condemned you when you gave them counsel on the constitution and now they are crying for interpretation.Dull Lungu.
We remember the LAZ of Christopher Mushabati & William Mweemba. The current LAZ is so politically correct that Chisanga speaks through his teeth.
But at the end of the day we all need to stand up & demand for what’s ours. People like Gen Miyanda need our support. Sometimes its good to say something, even a stupid thing, than to keep quite. The executive, judiciary & legislature take advantage of our complacency to lord over us.
ZAMBIA ‘S JUDICIAL SYSTEM IS CRAP AND WROTTEN ..ALL THOSE JUDGES AND LAWYERS SO CALLED ARE EXTREMELY CORRUPT INCLUDING. IN FACT, LAWAYERS AND JUDGES IN ZAMBIA ARE AMONG THE MOST CORRUPT UNDERGROUND CRIMINAL GANG ON THE PLANET, PROBABLY AT THE SAME LEVEL WITH DRUG DEALERS IN MEXICO AND STRAUSS KHAN’S PROSTITUTION RING IN PARIS….MWANVELA!!!!
Gen Miyanda’s articles are well thought and properly written. The man is wise. I still remember when he warned President Lungu not to sign the constitution with eyes closed and he gave 10 brilliant reasons. I wish I had a president like Gen Miyanda.
Article not well articulated. For me it’s a C+
Well articulated article but suffice to say we(Zambians)have created a greater elephant in the house in the name of presidency.We fail to separate a president,as an individual,and presidency as an institution.There is a distinction between the two but we have married them such that the later has more powers than the former.As at now,no one has powers to talk about the presidents speeches hence he or she is cited for defamation.This animal we created it way back in one party state and it has continued being with us.We have taken speeches and comments from presidents as gospel truth which cannot be challenged.This is so because, when formulating constitutions,we make presidency stronger than any institutions of the land.
I always enjoy Gen Miyanda’s articles, one of the few sober minds in the country. I concur with his “…call on the legal fraternity to get involved…” LAZ comes to mind. I thought this fraternity of legal minds should be at the forefront enlightening the majority of us who don’t understand legalese. But they are always frighteningly silent when we desperately need their input. I don’t know if it’s impotency or cowardice.
THE GENERAL HAS SPOKEN, WHY CANT WE ALL JUST VOTE FOR THIS GUY? MAYBE THIS COUNTRY WILL HAVE ORDER
Hi General, in the meantime I seat and wait for your Blogs, ist just sooo refreshing to read. Yes, most people here read Blogs from you or Sosala and start nonsensical verbal frays. Thanks once again but such Blogs are a cry unto the People, the scholars and sundry to sit-up and guard against imminent danger and chaos – be it jurisprudential as here, or sanctity of land as our identity as a people or customs. I hasten to proclaim LAZ is the most disappointing Assemblage of “scholars” we have bread, since the demise of the likes of Shamwana. Well said General and thank you – happy Easter 🙂
Boring as usual. The general insinuates that he is not a mere mortal being. Are you suggesting to be alien? Just saying….
General Miyanda you are wrong on the Dissolving of Parliament , HEEL Lungu is right. Come May 2016, Parliament stand dissolved. To be precise on 11th May 2016 no parliament Sir in accordance with article 81.
Which states; 81. (1) The term of Parliament shall be five years commencing
from the date that the Members of Parliament are sworn into office
after a general election and ending on the date that Parliament is
dissolved.
(2) The National Assembly may, when the Republic is at war,
by resolution supported by a simple majority vote of the Members
of Parliament, extend the term of Parliament for not more than
twelve months at a time.
(3) Parliament shall stand dissolved ninety days before the
holding of the next general election.
Vision 2030 Do you understand what you are reading? Miranda is correct , parliament dissolves itself on 11 May 2016, it is not the president who dissolves. In this constitution the president has no powers to dissolve parliament.
@”Him” read my comment again- I stated “Parliament stand dissolved” My contention is Month (May 2016) AS CITED
====No where in my text are the words; “The president shall dissolve Parliament”
Could you please explain how the General is wrong on the statement attributed to the President about dissolving parliament.
Interesting indeed. Another spelling for ‘rotten’ is wrotten.kkkkkkkkk
Problem with Zambian politics is we are vindictive. Anyone who differs or has a different opinion is either bitter or has an agenda. People like Miyanda should be embraced and consulted, they mean well with their concerns, they are not attacking. There are a lot of economists who’s track record is there to see, but they will not be consulted because they are looked at as enemies of the system.
we always vote for what we are equal with. Miyanda is above the politicians we have at the moment. my lecturer once said to me and it still rings true today. he said “how many people trust Miyanda? many i guess from the hands youve raised. how many people here think Miyanda is a good leader? many hands shot up. then he said why is it that people dont vote for miyanda. and thats when they started saying things like how do you get back your money for campaigns if Miyanda is president. then i knew there and then that Miyanda will never be president
Ethics, ethics, ethics. For the Judiciary to be said to be ethical, they must embrace justice and fairness. Some of us who have experienced the bias of a court agree that judges can sometimes be subjective, leaning on other factors apart from justice.
Just like what judge Florence Lengalenga has done to the GBM vs speaker judicial review case.FLAWED JUDGEMENT.
As a young lawyer how can you be proud to stand before a judge, to fight for your client, when the same judge has decided the case outside the court room due to interference of one form or another? As a judge how can you have a free conscience when you have convicted or found liable a person who is not guilty or liable, simply because you are compromised or intimidated? Do you legal people still believe that the Blind lady standing in front of our Courts, blindfolded, is still blind? Or is the Lady’s blind-fold a see-through? How can you as lawyers proudly stand before a judge who has already made up their mind and argue a case that is predetermined? How can you stand the situation where Big Brother is breathing down the necks of judges to do the bidding of the Executive? What is the…
Here is the truth PF is not telling the nation
1. The OMO is meant to remove liquidity from the market to support the kwacha, and it is working and the effects are as follows
a. limited capacity by the ordinary people to procure goods and services on the market to support import of goods. This implies limited demand for the dollar as importers are not able to sell there good on this market
b. the Zambian economy is shrinking as a result of aggressive OMO strategy by BoZ
c. If this continues businesses will start laying off workers increase the suffering of the general population and eventually destroying the economy further
d.It will be difficult to support diversification of the economy when there is limited activity in the economy
And lastly the number of people going to bed on…
Brig Miyanda, grade 12 was only introduced in 1976 or somewhere thereabout. Before that there were forms. Is grade 12, then equivalent to form 5 or form 6. Or even form 4. There was a time people from form 4 upwards people would be allowed to enter university. If you are failing to see that the constitutional court needs to interpret this clearly you are as usual just politicking or making noise for the sake of making noise. President Lungu was advising the constitutional team with a clear conscious. Grade 12 requirement needs to be cleared quickly so that people like you can stand as president with everything cleared.
“…such independence [of the judiciary] implies freedom from interference by the Executive or Legislative with the exercise of the judicial function, but it does not mean that the judge is entitled to act in an arbitrary manner.” James John Skinner in 1962
I think the interpretation of grade twelve would include equivalent certificates obtained before grade twelve was introduced, which was form five until 1986, and to include ordinary level certificates obtained from other countries, like form 4 in Malawi. For instance, it could mean that “grade 12 certificate shall be equivalent to 12 years basic education course satisfatorily attained through 7 years of primary and 5 years secondary education, and offered by a reputable examinations institution.”
For people who have attained good education, and understand the imortance of what school subjects contribute to one’s reasoning and unsderstanding of world affairs, we cannot continue to cherish the outcomes of law-makers who don’t understand matters of the country forever. Most…
Well said, General! A long time ago, I used to think lawyers were really astute people, worth respecting. HAhhhah, not anymore. Lawyers are just like thieves, mafia type especially in the last 5 years.
Brigadier General Miyanda is a remarkably well trained and schooled career Officer whose astute legal vision was often called upon for court martials in other commonwealth countries. Besides being in the initial wave of young post independence officers he spent years on the nations frontlines defending us against Vorsters South Africa , Ian Smith and the portugese coloniolists while helping the freedom fighters. He served Zambia well when called upon and succesfully defended himself in a highly profiled case.It is very important to understand his impressive background. ——-mkhuzo