By Dr. Munyonzwe Hamalengwa
One of the most endearing and enduring qualities of Western-Style democracies is the civility exhibited towards each other after a bitterly contested Intra-party or inter-party elections. Can this be reproduced in Zambia because as every one knows, this election and its aftermath was bitter. Zambia is bigger than any one party or individual? Robert Dole wrote that losing an election is a very bitter experience. It is like losing a heavy weight boxing crown which had sent George Foreman into a ten-year spin of depression but he came back and reclaimed the crown at age 45, the oldest heavy weight champion in history to ever do so.
But let me get back to civility which is the medicine that cures bitterness and divisions post-elections. The onus to demonstrate civility rests on the victors, no matter how they achieved that victory. The first prong of civility is for the victors not to gloat, boast and embarrass those who did not win. This is obviously counter-intuitive. Humans have a tendency to sneer and gloat and boast and mock those who did not make it. Zambia is a particularly sad example of this. It is shocking for someone like me who had been far away for a long time to find this unfortunate behaviour.
The second prong of civility is not to retaliate in any way against those who did not make it. Provable criminality on all persons regardless of their political affiliation is an exception and that must be left in the hands of professional police without any political tint or taint. The third prong of civility is to control and prevent political and party operatives from committing prong one (gloating and boasting and insulting the opposition) and prong two (retaliation).
I witnessed political civility in my 40-year residence in both Canada and the US. I was right there in the Nation’s capital Ottawa when young Joe Clark toppled the mighty Pierre Elliot Trudeau in 1979. It was mighty embarrassing for Trudeau to lose to a neophyte like Clark. But he exited the stage strong and proud, knowing that there will be another day. Young Joe Clark never gloated or boasted and only praised his predecessor. Nine months later, young Joe Clark lost a vote of no confidence in the a House if Commons to the Mighty Trudeau. He was back. I was still in Ottawa doing my studies at the Norman Paterson School of International Affairs. Trudeau never gloated. He never boasted. He never embarrassed young Joe Clark.
I was living in Toronto in 1988 when the Liberals under David Peterson defeated the 40-year rule of what was then called “the big blue machine” of the Conservative Party of Bill Davis. There was no gloating by the Peterson liberals, no harassment and embarrassing name-calling from party cadres and operatives. Two years later, Peterson lost the elections to the New Democratic Party (NDP) under young Bob Rae. The NDP had never won in Ontario since Canada was founded in 1867. There was no gloating or mockery evidenced by young Bob Rae and the New Democrats.
It is the same in the United States whether it is intra-party contests like Hillary Clinton losing to young Obama after a bitterly contested primary or it is inter-party like John MacCain losing to Obama or more poignantly because the Supreme Court intervened in the decision or indecision that ratified the presidency of George W. Bush against Al Gore, there was no gloating or resentment respectively. Will this be the case in Zambia?
I don’t remember which Kenyan author, maybe Jomo Kenyatta who put it more dialectically when he referred to his experience of imprisonment as “suffering without bitterness”, indicating diplomatically that life goes on after these loses. The victor must be gracious in victory and the one who didn’t make it must be gracious in defeat no matter what the beef may be.
I know it is easier said than done from the distance. But I also know that when I lived in the West for forty years, leaders lost power or elections and these leaders showed each other great civility for the greater good of the country. They do make up usually the same night the election results are announced. So I know it is done even here in Zambia, albeit not quite so civilly. These elections were bitter, the resulting conclusion has never been experienced anywhere in the world and it has left a bad stench in Zambia which can only be cured by greater doses of civility towards each other, on the part of the leaders, cadres and all Zambians. We are still all within the geographic boundaries of Zambia.
Dr. Munyonzwe Hamalengwa is the Compiler of the book, The Case Against Tribalism in Zambia which is available at Bookworld bookshop. He teaches law at Zambian Open University.
Who will cage her in the lawless country? Kaizar Zulu and Max Chongo have shot people and are walking freely. The police have no balls to arrest any PF cadre. They are only seen when it’s an opposing voice. Very sad state of affairs to be in for a country.
Mumbi Phiri , is a very big idiot, how can she say, we don’t employ people from southern, western, north western, saying they are frustration government development, she needs to be caged once and for all
I contend that in the eyes of the law, Lungu’s presidency shall remain illegal for the whole of its duration. Firstly, he wasn’t voted for by more than 50% of the electorate as one can see the cooked up results on the ECZ website, the inconsistencies in the released results, illegal individuals in the totalling area etc etc, the evidence is there to prove it. Also, there is no where in the constitution where it says the case shall be heard and concluded in 14 days. In my opinion the 14 days refers to when the case must be heard from and not heard to. To put it logically, it is similar to asking somebody to build your house within 14 days. It doesn’t necessarily mean the house must be completed in 14 days but rather the building should have commenced within 14 days. Point me to a provision in the constitution or any law which refers to the time of completion or determination of a petition. Further there is no provision which guides on what would happen if a case is not heard. It means that the framers did not foresee any eventuality where a petition will not be heard; otherwise, they would have clearly stated what should be done. Unless we argue that the framers were also incompetent. The 14 days is part of the hearing, meaning the 14 days do not apply if the case has not been heard. They are mutually inclusive and one can not do without the other. Furthermore, where in the world has a junior judge given the verdict of a case when the president of the case is present? This wasn’t only a disgrace to the legal fraternity in Zambia but a dangerous precedence where those in power can ignore the law and there is nothing anyone can do. In the real world, it is treasonable to say the least. Anyway, in Zambia its jungle law. Expect a declaration of a One Party State soon to prevent violence in future elections.
No you are not missing anything at all. Your analysis is correct if we follow the law of the constitution but you know that this process was aborted. What this means is that since the timelines elapsed, it is as if no petition was ever filed and therefore Justice Chulu’s declaration of Lungu as duly elected stands. The case was dismissed for failure to comply with the 14 day stipulation, so the status quo remains as it were. I am now using the Canadian, British and American legal lenses. In Zambia it may simply mean that the judges don’t know what they are doing or did. They even never made a ruling as to whether it it was legal for Lungu to not hand over power to the Speaker, a very simple constitutional interpretation. This judiciary was muzzled from the beginning by some strings. Some day some one will talk.
The questions you raise can open a window to go back to the court and request a formal ruling on the section you have quoted. But that is dangerous because you will be giving the court an opportunity to mend their ways and redeem themselves as it were. Let this ignomity remain on their record for posterity, as a monument of the monstrosity of an injustice perpetrated by this court. The first case of its kind by thus new court ends up as a gigantic disaster. No constitutional court in the history of the world had been this fumbling from the get go. Lawyer John Sangwa had written to Presudent Lungu to dissuade him from sppointing all these judges on account that they were all incompetent. They were not qualified according to Sangwa. He had been proven correct so far. Having said all this, the reality is that Lungu will be sworn in next Tuesday because of the decision or indecision if this court. What do you suggest?
Ba Munyonzwe, I am a bit confused with your analysis. Yes in the rule world your solutions could work would be quite healing. You state that the court process was aborted. But what was the court ruling? I have read the dismissal of the petition several times. I do not see anywhere it declared any candidate validly elected. Article 105 says ‘After hearing the petition, the court shall….. ‘ And gives three alternatives one of which is to declare the president-elect as validly elected. But they didn’t hear the petition and didn’t make declaration. So what is the actual status of the election? Why should we assume that throwing out the petition is the same as accepting the original result? I humbly believe it is illegal and unconstitutional to swear anyone in as president without a clear ruling of who won. Am I missing something here?
Denning I thank you for your comment. But have you read my comment above yours? My article is geared really to discussing what do we do in the face of the current reality which is, the case in the court was aborted and the Lungu will be sworn in next Tuesday. My solution is civility in the face of reality. I see that there is no civil disobedience in the streets, I see that there is no revolution in the streets, I see that there is no secession. I see another judicial application in the High Ciurt which is a continuation of civility.
Civility is not inaction just as Gandhi’s non-violence is not inaction but inside these are actions, they are called positive actions and they portend for potential positive and lasting impact heading towards another election.
You are talking about natural justice. Pain is imbedded in one’s system when this is denied . But this is not what my article is talking about. It is talking about what happens now that this has not taken place because the ruling was natural justice didn’t take place because the 14 days have expired, as per the constitution. I don’t agree with the ruling but I also know that that court once they have made that ruling and Lungu will be sworn in next week, short of other methods of protest, only civility will provide the route forwards.
In Canada and the US there are deadlines within which everything has to take place. Even ordinary law suits have deadlines although the actual decision as to when it has to be rendered usually has no deadlines. So pointing to natural justice on its own is not very productive. Natural justice exists within a context. Everything in life has a context. What is the context is the guiding question rather than justice positing natural justice as if this concept is free standing.
In terms of judges changing their minds like we saw here, that is unprecedented and it is a monumental shameful blot on the Constitutional Court. There is no explanation for this incompetence other than the application of external pressure on the court or serious contradictory pressures amongst the judges. I have never seen this in my entire life. Something went wrong in the court. The truth will always come out someday even beyond our lifetimes. Somebody is going to talk.
Doc, can you please mention ONE case in either USA or Canada, where Constitutional/Supreme Court has changed its ruling THREE times within a week? Or for that matter, refused “fundamental right to be heard by an impartial tribunal”?
If you want to kiss somebody bottom, do it in private. Otherwise, you may be perceived incompetent in the same area of your “doctorate” (LOL).
By the way Doc, did you ever hear about “rules of natural justice”?
Ok now we are talking and it is very helpful. So let’s then propose workable solutions. What do you suggest those who did not make it do? Note that I am not using the word losers, let alone vanquished losers because that is debatable. The challenge to determine that was aborted. But there is a cloud there.
Is there any other peaceable solution other than reciprocal civility? There are many other alternatives but those are not peaceable solutions, for example forceful resistance, secession, Revolution etc. These would divide Zambia violently.
The court proceeding was aborted as is clear and it is not going further because there is no appeal to that form the Con Court. I don’t know whether the High Court will interpret the 14 days differently. If they do, it is not known whether the Con Court will assume jurisdiction again. So the legal route is uncertain. The reality is that Lungu will be sworn in next week and once that happens, everything else becomes academic. So what now other than the praxis of civility, the only non-violent alternative given the aborted judicial process at the Con Court and the uncertain future of the High Court route?
Now the constitution and the Criminal Procedure Code prohibit tribal or any other incitement. It is unconstitutional to propagate tribalism, so one could go to court and apply for remedies against anyone violating the constitution by former ting tribalism. Secondly, one can report any person who propagates tribalism to the police and produce evidence for that criminal act and insist that criminal charges be laid. If the police don’t act despite clear evidence, either sue the police in high court for negligence in the performance of their duties or for discrimination or other tortious causes or seek mandamus in High Court to compel the police to do their jobs of ‘serving and protecting”. One can also take the police to the Human Rights Commission.
There is also the option of reporting the tribal propangandist to the International Criminsl Court for inciting steps towards genocide of people based on tribe. This is preventative because genocide would not have taken place. This step should only be taken if all appeals and delegations to the police and the courts as well as documented appeals for presidential intervention have failed. This now becomes a state act rather than the wild rantings of a tribalist minister or party official. Everything should be carefully documented, whether it is a report to the police, an application in court, human rights tribunal, letters to the president and so on. The bottom line as I have always stated in these pages is EVIDENCE and EVIDENCE.
As part of transparency as to what actually happened in this election and to indicate who really won, I urge as part of the civility project that the petition, the affidavits, witness statements, all court submissions and responses be publicly published in book form of how many volumes for posterity. Let the Zambians see through this evidentially collection who really won the election. This would be a public record. This publication of the evidence and easy accessibility through the Internet or public purchase would be done in the West. This should be done here as well.
The other public accountability process would be a mock trial in a public place where the public could be invited to observe. There would be a panel of judges and lawyers representing each side and real evidence would be submitted. All parties have all this evidence. But he general public does not have it. Let it all be public and let the doubters know what really happened during this election.
This is my two ngwee worth of input .
Let’s all propose workable solutions.
2016-09-05 23:00:12: Black Berry Prof Malambo: TONGAS, LOZIS, LUVALES SHOULD NOT BE EMPLOYED IN GOVERNMENT – MUMBI PHIRI.
=====
PF Deputy Spokesperson Mumbi Phiri has reiterated her call for Tongas, Lozis, Luvales and Kaondes that they must not be employed in government because they be frustrating government efforts to foster development as they are opposition sympathizers.
“I call on President Lungu to ignore Tongas, Lozis, Luvales and Kaondes in his cabinet because these people are working with HH. Secondly, let all Tongas and their tribal cousins not be employed in government. PF as a party has an agenda to develop this country, and if we employ these quacks, I tell you they will frustrate our efforts to foster development to all parts of Zambia. These Tonga guys and their tribal cousins are UPND sympathizers, so how do you employ such people? We will take development to their areas but all that we don’t want is to employ them. They will give us headache.” Ms Phiri said.mazabuka Times.
Dr the above statement is for those that you refer to as the vanquished loosers
You steal someone’s votes and expect the person to concede defeat. Even in the western world any perceived rigging will be challenged in a court of law especially if it’s significant enough to overturn the result. The Concourt judges remind me of those pundits in the muppet show!
Civility,probably yes but were evidence of rigging votes was there I think its another case,in short zambia’s democracy is surely dying as said by nawakwi,all independent institutions are broken which is not helping the voter who is cheated tht he’s got a constitution tht governs everyone including thos we entrust with power.mmmmm
Dr…… you are right, but what is at stake has nothing to do with civility.
Zambia is not founded on civility but deceit.
This is the problem.
Dr, with due respect to you, please guide me as I try to make sense of your analysis. If an accused burglar or for that matter a thief steals your household stuff and the arresting officer forgets to read him his right at the time he is apprehended and the judge throws out the case on the basis of this technicality, do you, as the victim have to be civil about it. That is, after the case is “disposed off”, you walk to the accused, congratulate him because this is a game we claim of natural justice. My foot my friend. The guy still has not returned my property or the court has my stuff as exhibits and you expect me to be civil about it. No sir, justice should be done not the way you have put. I usually like your presentations or analyses but on this one, you have not shown any difference to the full bench of the concourt. Clearly, one is compelled to think that female judges on that bench slept their way up and male judges got brown envelops.