Gen Miyanda writes LAZ over Sata threats to East chiefs

OPEN LETTER TO THE LAW ASSOCIATION OF ZAMBIA BY BRIGADIER GENERAL GODFREY MIYANDA ON THE THREAT BY REPUBLICAN PRESIDENT MICHAEL SATA TO DETHRONE SENIOR CHIEF NZAMANE AND CHIEF MADZIMAWE OF EASTERN PROVINCE [13th February 2011]

To: The Honorary Secretary of the Law Association of Zambia, Greetings!

I write to lodge a complaint as well as to make an earnest appeal to your Association to act on a matter of public interest. I have written this letter in my personal capacity. I have addressed this letter or appeal to your organisation because I continue to believe that the members of Law Association of Zambia (LAZ) have a broader objective of serving the public interest, being mindful always to avoid being partisan.

This letter, though dubbed Open Letter, is for your distinguished Association’s attention and action. It is “open” because it is a matter of great public interest, in that the Executive, through the Republican President, intend to take some action that is arbitrary, dictatorial and hence illegal and unconstitutional. There are several such instances which I can cite but the immediate incident is the threat to dethrone two chiefs, namely Senior Chief Nzamane and Chief Madzimawe of Chipata District in the Eastern Province.

The pronouncements were made by the Republican President at an unrelated function of swearing in ambassadors. At the said swearing in ceremony the President alleged, inter alia, that the two chiefs had committed some serious crimes warranting the invoking of some provisions of the Chiefs Act, with a further threat to rusticate them to an area outside their ancestral areas. He further alleged that they had been engaged in some corrupt acts or had benefitted from some bribes.

The two chiefs were not present. That same evening the Executive availed to the media correspondence by the Republican President before the two chiefs had been served with their copies; thus the alleged transgressions of the two chiefs received country-wide (nay world-wide) publicity in all the print and electronic media.

President Sata’s threats are inconsistent and contradictory in that sometime in September 2011, when former President Rupiah Banda threatened to dethrone Her Royal Highness Senior Chieftainess Nkomeshya Mukambo II, he, as an opposition leader, condemned the threats and even made the issue a convenient campaign issue in Chongwe Constituency which his party won – Her Royal Highness publicly pledged to ensure his party’s success! So what has changed now?

I contend that the President’s intention to dethrone the two chiefs is without proper or plausible grounds. Further it was uncalled for to publicly dress down the Chiefs in front of the whole of Zambia. Unfortunately such threats have a tendency to grow louder and bigger and create fear and tension in the nation. That is why this paper is written as a matter of urgency to goad on the Law Association of Zambia to show leadership and provide timely and appropriate direction.

I have enclosed the following correspondence as background information and for ease of reference:

a. My letter to the President of LAZ dated 19th August 2005 (and copied to the Attorney General and the Eastern Province Royal Foundation).

b. My paper titled ‘Restoration of Traditional Authority’ dated 19th August 2005 attached to the LAZ letter above.

The foregoing papers were also submitted to the National Assembly as part of the Heritage Party contribution under cover of a letter titled ‘HERITAGE PARTY SUBMISSION DATED 18TH MARCH 2011’. This latter bundle was also presented to The Post newspaper for their archives; but I have enclosed a copy for your LAZ library or archives. However the same will be found on website www.godfreymiyanda.ws. For the record, my letter to LAZ of 19th August 2005 was never answered.

The purpose of this Open Letter is two-fold:

i. To urge LAZ to take up its mandate under its objectives and help give direction on pertinent legal controversies as well as come to the aid of any citizens under threat of abuse of power or executive excesses.

ii. To inform the public, especially all chiefs and other traditional leaders in Zambia, and hopefully to rally them to stand in solidarity with each other to resist dictatorial and divisive tendencies that threaten the very unity of this country.

iii. To implore the Minister of Justice, Honourable Sebastian Zulu, to stop being a spectator when the Executive is acting in an arbitrary and dictatorial manner, and provide timely professional advice unless he has a private interest to protect.

Mr Secretary, my paper titled “RESTORING THE AUTHORITY OF TRADITIONAL RULERS”, is self-explanatory. If your Association chooses to respond to it I recommend that it be dealt with separately; for now my urgent concern are the threats by the President to dethrone the two chiefs, which I strongly object to for reasons stated herein.

I contend that the President does not possess powers to arbitrarily remove a chief from their hereditary station under the guise of ‘withdrawing recognition’; if he goes ahead with this threat he will be acting illegally and unconstitutionally. I contend that there is no law that gives the President any blanket authority over traditional affairs, especially the ascendancy and succession of chiefs in Zambia. Proper procedures must be followed before the relevant powers are invoked; from his very angry attack on the two chiefs it appears he has already made up his mind about their guilt!

Clearly the President has misconstrued the letter and spirit of the Republican Constitution vis a vis the resolution of disputes in a traditional setting in Zambia. I further contend that reliance on the Chiefs Act for the crimes alleged by the President is misconceived because the sections relied on by the President are repugnant to Article 127 of the Constitution of Zambia; in the alternative I would argue that it is prejudicial and embarrassing for a chief to be accused of offences that cover various laws.

The accusations by the President bring up an offence covered by the Public Order Act. Other possible offences disclosed by the President’s allegations could very well fall under the Penal Code (CAP 87), the State Security Act (CAP 111), the Public Order Act (CAP 113) the Preservation of Public Security Act (CAP 112) and The Corrupt Practices Act (CAP 91). For certainty of procedure and fairness an accused person should be told the specific crime he or she has breached and who is the complainant to enable him or her to adequately and properly defend themselves.

The procedure adopted by the President to publicly lambast the two chiefs during an unrelated swearing in ceremony of ambassadors is contrary to current law and practice regarding traditional affairs and lacks transparency. In fact it is intimidating (as opposed to being inquisitorial) and has presumed, without hearing the two chiefs, that they are guilty as alleged by whoever is their accuser. In his attack on the two Chiefs the President did not indicate the source of the allegations against them.

I encourage the President should desist from being an active participant in the process unless he chooses to be a whistle blower. A whistle Blower is a potential witness; and as such the President should not use presidential powers.

Some of the allegations made against the two chiefs fall under the Penal Code and the Public Order Act rather than the Chiefs Act. Before powers under the Public Order Act are invoked they have to be declared by the Minister, NOT by the President. Thus if the President intends to rely on the Public Order Act for the alleged offences by the two chiefs he has not got such powers. If he changes his mind and decides to take advantage of the Penal Code the nearest offences could be the following: section 46 and section 57 as read with section 60 (1) which requires written consent of the DPP instead of threats by the President.

It is worth noting that the current Chiefs Act was enacted in 1965; but the Chiluba regime introduced Article 127 in 1996, which is the first time that the Institution of Chiefs was recognised in the Zambian Constitution as an institution. Essentially Article 127 has amended the Chiefs Act.

Ignoring procedure is fatal and usually results in injustice. The American maxim “Procedure is the handmaid of justice” is a timely reminder, especially to the Minister of Justice to play his role as one of our guardians of justice and not as a member of a “Deadly Team”! I urge the Executive to abide by the Constitution of Zambia and not just read the Chiefs Act in isolation. Article 127 of the Constitution provides as follows, inter alia:

“Article 127 (The Institution of Chief):

(1) Subject to the provisions of this Constitution, the Institution of Chief shall exist in any area of Zambia in accordance with the culture, customs and traditions or wishes and aspirations of the people to whom it applies.

(2) In any community, where the issue of a Chief has not been resolved, the issue shall be resolved by the community concerned using a method prescribed by an Act of Parliament”.

It is contended that the intention of Parliament was to let the traditional authorities, in conjunction with their subjects, to resolve any disputes affecting traditional affairs. As presently framed in Article 127, the authority and/or mandate for the management and resolution of disputes of a traditional nature is reposed in the communities, that is to say the Chiefs and their people.

I contend that the power to ‘recognise’ does not mean power to remove a chief solely by Presidential decree or even to dissolve a chieftaincy; the Institution of Chief is hereditary. So far the President has not disclosed to the two chiefs the source of his information but has concluded that they are guilty, hence his threats against them.

Even assuming that the two chiefs did threaten the Nkhosi ya Mankhosi, it is contended that there are other ways this matter could be handled and in all of them it is undesirable for the President to be an active participant. For the President to be active in the early stages of a traditional dispute is what creates a personality cult that leads to patronage which further slows down democratic development because citizens revert to the President whom they begin to worship as some sort of a god! The procedure for withdrawing recognition must remain transparent and certainly NOT arbitrary.

It is surprising that not a single chief has come up in defence of their two colleagues; clearly they are intimidated by the threats of dethronement. I call upon all chiefs to speak out against arbitrary Presidential decrees. There is no Zambian who does not come from a village or claim to belong to a village in Zambia under a chief. The President is just one of the villagers! As a result of the elections he has become the Number One Servant of the people. All bona fide Zambians must condemn any arbitrary, divisive and dictatorial tendencies.

The Chiefs’ Act must never be used as a campaign tool for future political mileage. The lambasting of our chiefs in public by the President was uncalled for. Although he was threatening the two chiefs in Chipata, the effect of the threats has spread across all the provinces and unless corrective measures are taken, the threats will remain and continue to haunt all traditional leaders in Zambia.

I call upon LAZ to address and act on the issues raised in this Open Paper as a matter of urgency.

Yours in the National Service,

GODFREY MIYANDA

BRIGADIER GENERAL

A CONCERNED CITIZEN

13th February 2012

Cc: Minister of Justice

Cc: Attorney General

Cc: Human Rights Commission

Cc: Civil Society

Cc: The Church in Zambia

Cc: The Press (Print and Electronic)

Cc: Chairman, House of Chiefs

Cc: Secretary, House of Chiefs

Cc: Various Royal Establishments and Traditional Rulers