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Opinion Pieces

Tribunal Ruling Weakens Judiciary – Prof Hansungule

Date: 12 May 2013
Publication: Zambia Reports
URL: http://zambiareports.com/2013/05/12/tribunal-ruling-weakens-judiciary-prof-hansungule/

Respected Zambian law scholar Professor Michelo Hansugule says the Supreme Court ruling that allows a tribunal set up by President Michael Sata to go ahead hearing the three suspended judges has effectively weakened the judiciary in the country.

Acting Chief Justice Lombe Chibesakunda passed one of the most ambiguous Supreme Court ruling when she said President Sata acted within the constitution to suspend three judges but advised against proceeding with the same tribunal due to constitutional issues.

 

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The three judges – Phillip Musonda (Supreme Court), Charles Kajimanga and Nigel Mutuna (High Court) – were at the centre of a judgment that found President Sata’s allies Fred M’membe (Post Newspapers owner) and Mutembo Nchito (Director of Public Prosecutions) guilty of defaulting over K18 billion public loan.

Exclusively speaking to Zambia Reports, Prof Hansungule, a lecturer at the University of Pretoria, said while he had not read the actual ruling to give a definite opinion more so he was scheduled for a meeting with the Acting Chief Justice, he still found the judgment wanting.

“If I can say anything out of what I get from media sources, the majority ruling is helping the Executive to weaken the judicial arm of government and I fully understand why senior members of the Executive on the case are celebrating,” the South Africa-based law lecturer said.

“Besides the Kingdom of Swaziland where High Court Judge Thomas Masuku was dismissed for a sentence he wrote about His Majesty the King in his judgment, this is the second case in the region where a judge is being investigated for discharging his functions as by law laid down.”

Prof Hansungule, a strong critic of the Movement for Multiparty Democracy (MMD) who was given unfettered covered by the PF aligned Post Newspaper which is no longer the case now, said on the basis of the scanty information in public domain, he still cries for his country.

“This is sacred soil for another government branch to carelessly tread on. Article 91 (2) of the Constitution reads:

“(2) The Judges, members, magistrates and justices, as the case may be, of the courts mentioned in clause (1) shall be independent, impartial and subject only to this Constitution and the law and shall conduct themselves in accordance with a code of conduct promulgated by
Parliament.

“This is echoed by relevant provisions of international law applicable to Zambia an example of which is Article 26 of the African Charter on Human and Peoples’ Rights which enjoins States parties to guarantee independence of their judiciaries.”

Prof Hansungule adds, “…implicit in article 91 (2) above read with 98 (2) (3) and (4) is a duty on the President to carefully and calculatedly weigh his options as he considers invoking any of the sanctions against a judge in this sensitive branch of government.”

Prof Hansungule has promised, after thoroughly studying the heavily criticized and condemned judgment, to issue a comprehensive legal opinion.

Zambia is plunged in fear that with the judiciary sold out to President Sata and his business partners, clearly sacrificing its independence, the country is fast heading into a one party state where opposing views will be crushed with impunity.

Professor Hansungule: Zambia on the brink?

Date: 27 February 2013
Publication: Zambia Watchdog
URL: http://www.zambianwatchdog.com/?p=52722

It is highly ironical that on a day that a South African Court delivers a historical judgment ordering the National Prosecutions Authority (NPA) to investigate claims of election related mass rapes and other crimes perpetrated in Zimbabwe during the 2008 failed election, reports from Zambia suggest the country is on the same lane towards the Zimbabwe type situation. Isn’t this an amazing coincidence? Is Zambia going to be another case for SADC mediation? At the rate things are going in my beautiful country, nothing can be ruled out.

 

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The only thing that I thought was lacking in the civil society/opposition complaint to the Commonwealth two weeks ago was solid evidence not of misgovernance because there is plenty of this everywhere one looks at but of a pattern of rapidly degenerating society resulting in systematic violation of civil liberties including such basic right as the right to organize, gather and canvass for votes from the electorate by opposition.  But how lucky they are that the ruling party have just handed this literary on a silver platter. Though the complaint made a string case, I thought that there still was one or two missing jigsaw puzzles to make the case water tight. With the events of Livingstone and Mpongwe especially the former, I don’t think the Commonwealth or any other forum for that matter will have to look far to make a case against Zambia.

Africa has had far too many examples of failed states crushing in our very eyes with catastrophic losses of innocent lives and property to afford one more. The superficial peace Zambia has ‘enjoyed’ the past half century should not make us believe it is genuine. For years, we believed in a fiction that Kenya and Ivory Coast were oasis of peace in troubled regions. I need not complete a well known sordid story that followed. In both cases, however, it is interesting that it was a simple case of failing to count the votes and of magnanimously conceding defeat that brought whole state machineries crumbling to the ground in a matter of days.  By the time we realized that ‘peaceful’ Kenya and Ivory coast were fictions of those with evil interests, thousands had perished most of them for nothing they could understand.

In 2009, the African Peer Review Mechanism boldly reported in its annual report on Mali that (quote) ‘…….The presentation highlighted Mali’s strengths and best practices which are the culture of dialogue and vibrant participatory democracy: the vitality of youth and women associations…….’ (page 12). If this was true, why is Mali what it is barely four years later after the APR peer review? What happened in just this short period to the culture of dialogue?

I have always argued that the most important guarantee to sustainable peace when the masses refuse to fight and reject state-based divisionism. Politics of bankruptcy have totally ruined stable societies and only political vultures benefit from state-sponsored chaos. People must reject desperate or ngwangwazi politics because once the peace you enjoy collapses, no one, not even the United Nations or the African Union will come in time to protect you. Unless the Americans, French or Europeans come and only if there is definite rewards for them, you have had it. They did not come to Rwanda and neither did they come to Sierra Leone because there was nothing there for them. If they could not even come to Kenya, why would they come to Zambia if it titters to the brink?

In the midst of all this, however, there is something to celebrate. The precedent setting decision by a South African Court today means anyone tortured in Zambia can sue in South Africa as torture is a universal crime and perpetrators can be arrested at Oliver Tambo Airport  on their to South Africa or connecting to another country. Europe is already practicing universal jurisdiction and any torturer who goes there is likely to be netted in one of their cold prisons.  The most important thing for the victims of torture or other crimes against humanity or their families is to penetrate the security establishment and get them to cooperate to supply you with names of those who tortured you. Majority of security officers are human. That’s why regimes fall. While they do the bidding of their masters, they pass on information to victims. Torturers and their bosses can no longer walk the streets.

Opposition should complain to other international bodies also- Hansungule

Date: 16 February 2013
Publication: Zambia Watchdog
URL:  http://www.zambianwatchdog.com/?p=51792

Opposition parties and civil society organizations should be congratulated by all well-meaning people for taking the initiative to approach the Commonwealth and express their grievances over their experiences in trying to consolidate democracy in Zambia. The Commonwealth is one avenue that states including some of the state officials in the current government in Zambia established over the years to empower citizens ventilate their grievances against their own states when times get hard. Though they may have forgotten after bouncing back to power, some of the state officials who are now crying foul over the report of the opposition/civil society to the Commonwealth are the same ones that took part in defining these standards which today they find hard to comply with. No one imposed these standards on the Commonwealth least of all opposition or citizens.

 

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It must be understood that the international community has evolved from the time when it treated human rights as internal issues for the exclusive domain of the respective country or government to deal with. Only last year, the African Union was celebrating the theme ‘shared values’ among which is human rights which it has been constructing over the years to the complicated system in place today which compels states to account for their human wrongs. The same states have constructed effective global regimes on human rights in a bid to stem the tide of human rights wrongs.

The Commonwealth is one of the organizations that for many years could not prove its practical value to its citizens. Rather, most people associated the Commonwealth as a symbolical show of power where the Queen wined and dined with other queens, kings, presidents and prime ministers. Indeed, the Commonwealth meant nothing in the lives of ordinary citizens. Others accused the Commonwealth of being nothing but a perpetuation of the colonial ties by former colonial ruler the United Kingdom. More progressive citizens questioned the relevance of an independent country belonging to the Commonwealth based in the capital city of the former colonial ruler and headed by a Queen of the former colonizer? However, with time, the Commonwealth has successfully been re-inventing itself towards a powerful weapon to fight for democracy, human rights, rule of law, good governance, etc. One of the flagships of the Commonwealth programmes is the Harare Declaration (1991) adopted under the watch of Chief Emeka Anyaoku, then its Secretary General.

Though not a legally binding instrument with fatal legal consequences in the event of failure to observe it, the Harare Declaration is a powerful tool member countries used to communicate to their citizens their collective resolve to abide by carefully selected set of civilized values. Just to quote from one of its stipulations, it declares:

§  we believe in the liberty of the individual under the law, in equal rights for all citizens regardless of gender, race, colour, creed or political belief, and in the individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives;

Could it be that we cannot aspire to live by these values probably because they are just too high for us? I think not. This is precisely what the Zambian people want and voted for, not its opposite. The Harare Declaration and through it the Commonwealth and, therefore, the international community have agreed to a restricted notion of limited or even no sovereignty when it comes to ensuring observance of democratic values in each other’s countries.  Due to the unanimity with which member countries endorsed it, the Declaration stands on stronger moral ground to dictate civilized behavior by state officials in their relations with citizens. Its moral and political value, therefore, is far greater than the legally enforceable tools and instruments.

However, values and rights or freedoms, however, well crafted do not execute themselves. In other words, the Harare Declaration or any other Declaration for that matter cannot translate into tangible benefits for the citizens they are meant for. Either other members of the grouping, organizations or citizens should rather than sit down stand up and boldly raise issues when things go wrong.          

Does it really matter where citizens converge to deliver their grievances? I honestly think not. It is common sense that a prisoner is unlikely to complain the beatings to the same prison warder who beats him. In front of the magistrate or Judge, however, the same prisoner feels empowered to convey his true feelings about his mistreatment which is fairly understandable. If people are arrested for being at a market, going to a Chief or convening a peaceful rally, how do they go ahead and convene a press briefing in that same country to announce an international initiative which as we have seen in this case throws authorities to the margins of madness?

Most of these challenges the country is going through have to do with abuse of state apparatus in particular the police. We have read unprecedented statement in some of the publications purporting to have been issued by no other than the highest police command. Unprecedented because security forces and police in particular should be the last in a democracy to say, behave or imply political partisanship. Police are not trained in interpreting statements politicians make during their rallies and cannot pretend to understand subliminal messages underlying those statements. If a meeting is peaceful and it remains peaceful even after certain statements are made by those attending it, how does this bother the police? Does peace bother the police? The Constitution is very clear in that police have a binding duty to protect peaceful rallies and assemblies as dictated to by the bill of rights which is the only authority police must abide by.

In fact, besides appealing to the Commonwealth, citizens should escalate their complaints to various other international forums. Provided they abide by their applicable procedures, it is their birthright to take grievances to whichever forum Zambia and other states have freely and voluntarily acceded to. Anyone who says this is unpatriotic successfully exposes their ignorance of basic international procedures and systems Zambia has long accepted as part and parcel of the civilized international community.

African governments must remember that they do not own citizens’ rights. It is not possible to make another person think through your mind. Individuals being such have individual uniqueness’ and no one can take this from them. While people may not define a right, they know a wrong when it happens or is committed to them. Herein lies their right to complain and even to peacefully take to the streets. It was precisely for this reason that the United Nations adopted the Universal Declaration of Human Rights to try and prevent people from taking to the bush to solve a problem each time they have a grievance. As demonstrated recently in the Arab Spring, peace loving people everywhere have a limit as to how much they can tolerate a bad government. There was absolutely nothing wrong with the citizens’ complaints to the Commonwealth and in fact they must do it again!

Gender bias rife in appointment of justices

Date: 31 January 2013
Publication: Pretoria News
URL:  http://www.iol.co.za/pretoria-news/opinion/gender-bias-rife-in-appointment-of-justices-1.1461831#.UQpW7mf4J8E

SINCE the shortlist of candidates to be interviewed for the Constitutional Court vacancy was made public there has been much concern voiced regarding the absence of women from the list. Many points have been raised about the unacceptablility of the status quo – only two out of 11 Constitutional Court justices are female.

 

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It has rightly been noted that this proves an appalling lack of commitment to judicial transformation. NGOs and the Law Society of SA have justifiably called for a readvertisement of the vacancy to call for woman nominees only.

Some lawyers are suggesting recruit-ment from within academia where a few highly qualified female candidates have been singled out as suitable candidates.

A compelling argument for gender equality in the judiciary is that South Africa is obliged under international human rights law to increase the number of woman judges. As a party to the UN Convention on the Elimination of Discrimination Against Women (Cedaw), South Africa must take measures to eliminate discrimination against women in all spheres.

The AU Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol), to which South Africa is a party, places it under the same obligation.

In 2011, the UN Cedaw Committee, comprising international experts on women’s human rights, recommended that South Africa take measures to accelerate women’s full and equal participation in public and political life. It singled out the judiciary in particular.

This followed an observation that there was a lack of progress in increasing the number of women in the judiciary. Under the treaty, South Africa is obliged to follow up on the recommen-dation and report back to it in 2014. Increasing the number of women in courts, such as the Constitutional Court, is precisely the type of result that the committee would expect.

International law, as articulated in Cedaw and the Women’s Rights Protocol, does not only require equality in law but seeks equality of results – substantive equality. The Judicial Service Commission (JSC) is expected to contribute to ensuring South Africa guarantee substantive equality.

However, there is evidence the JSC lacks understanding of international standards of gender equality, or chooses to disregard them. On January 18, the Centre for Human Rights at the University of Pretoria asked the JSC to reopen nominations for the Constitutional Court vacancy based on the unacceptable gender composition of the shortlist.

The JSC responded that the request would not be granted because the “nomination period was open to the public, for a reasonable period, to encourage suitably qualified person/s, either male or female, to make themselves available, or to nominate such person/s”.

This response is insufficient.

First, by noting that the nominations will not be reopened, it deems as a fait accompli a decision that is simply lacking in resolve to increase the number of women in the Constitutional Court.

The response indicates an assumption of a level playing field between women and men for nomination. But in a highly patriarchal society such as ours, gender bias is entrenched. When nominations are sought primarily from within the legal “fraternity”, is it surprising that no women were identified as suitable candidates?

Instead of the JSC shortlisting only men on the basis of the pool of nominees, actions were required in line with international obligations to go beyond the provision of equal opportunity only.

One such action – recommended by the Law Society of SA – would have been to advertise, targeting women only. This would be precisely in line with Cedaw and the Women’s Protocol and fall under “temporary special measures” provided for in international law to serve the goal of substantive equality. A counterargument raised is that appointments based on merit are compromised when such measures are applied. This argument incorrectly assumes the targeted group is inherently underqualified. It also overlooks the fact that merit is often not assessed in the absence of gender bias.

Another vacancy in the Constitutional Court is due to arise only in 2014. It would be unfortunate if gender-blind recruitment were to be repeated. The JSC, and the president, must take steps proving their commitment to compliance with their obligation under international human rights law to increase the number of women in the judiciary.

The following are some suggestions. First, JSC members should undergo gender equality training to understand the concept of substantive equality. Second, research should be undertaken on possible structural obstacles to high-level judicial appointments for women, including direct and indirect discrimination. Third, the JSC must apply temporary special measures, such as targeted recruitment, when advertising the next vacancy.

Finally, the president must appoint a woman as acting justice when the next vacancy arises.

It is not enough for South Africa to be party to an international treaty without actively taking steps to protect, promote, and fulfil the enshrined rights.

Karen Stefiszyn is Gender Unit programme co-ordinator at the Centre for Human Rights, University of Pretoria

APRM whitewashing Zambian problems

Date: 28 January 2013
Publication: Zambia Watchdog
URL:  http://www.zambianwatchdog.com/?p=50142

Many people in Zambia are obviously not aware that Zambia will be ‘peer reviewed’ under the African Peer Review Mechanism (APRM) at this weekend’s post-African Union Summit of Heads of State and Government and rightly so. In fact, most citizens are not aware or to put it simply do not know what this animal the APRM is all about? This is not only Zambia’s dilemma but of Africa as a whole.

 

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Here in Pretoria, I often ask my South African and African students the most basic of the basic questions ‘where is the headquarters of the continental APRM? Of course none would dare put up their hand. My next familiar question is to South Africans only asking them to tell me and their colleagues in class of the focal point of the South African APRM? No one has previously got the correct answer.

Established by the African Union (AU) way back in 2003, the APRM was part of an ambitious and comprehensive package of political reforms first initiated by then president Thabo Mbeki of South Africa in his rennaissance vision he proposed for Africa in the new millennium. As Mbeki was unveiling his plans to fight African poverty and maginalisatin in world affairs, his counterpart and public critic then president of Senegal Abdulouy Wade was busy unveiling his plan the OMEGA,. Like Mbeki’s New African Initiative (NAI), OMEGA promised to fight poverty and Africa’s maginalisation in the new millennium.

At the AU at the time OAU Lusaka Summit in July 2001, the two plans were merged into one which saw the birth of the New Partnership for Africa’s Development (NEPAD). Central to the four objectives of NEPAD is poverty eradication and also the fight against the marginaliation of Africa in world affairs especially in trade.

One of the main pillars of NEPAD was the APRM which in a sense was an announcement that there are new kids next block on African leadership in the names of Mbeki, never mind sanitized Obasanjo of Nigeria, Wade, late Melesi Zenawe of Ethiopia, etc.

Though others have criticised the entire concept as new wine in old bottles, these ‘new kids’ publicly promised African people to do things in Africa differently this time round in terms of the challenges of democracy, rule of law, human rights, economic and social development. It is common knowledge that Africans have never really been free in the truest sense of the word from since political independence. As Ugandan Professor Mohamood Mamdani argued in his revealing book ‘When Victims Become Killers’, correctly noted, post-independence African regimes so easily turn out to be oppressive or even worse oppressors once given a chance once given a chance in government.

This is Africa’s experience unfortunately. APRM which became independent of the NEPAD once it was on its feet, was initiated by the new kids next door as means to reverse Africa’s governance barbarism. Besides a modest Secretariat at Midrand in South Africa, APRM is led by a group of seven individuals from across Africa technically known as ‘Eminent Persons’. The first batch of the seven Eminent Persons included personalities like Graca Marcel, former South African Reserve Bank Governor Dr. Chris Stalls, former Vice Chancellor of Yaounde 1 University in Cameroon Dr. Dorothy Njuema, etc. Late Zambia’s former Foreign Minister Dr. Siteke Mwale served briefly in the second batch.

But like most African programmes, APRM is probably not something seriously sick people should put their confidence in. In its structure, APRM is defined as a voluntary mechanism which aims to provide a dialogue in the country about that country’s governance challenges and direction. On the basis of the four thematic areas, namely, democracy and good political governance, economic governance and management, corporate governance as well as social development, states that join the APRM undertake their ‘self-assessment’ of their records based on the above themes in the hope to engage citizens and stakeholders about their challenges and how to respond to those challenges.

At a practical level, APRM seeks to address such perennial problems in Africa as why courts are congested so that it takes ages for accused persons to have a bite at justice much against their guaranteed right to a fair trial? A country will review its record delays for the registration of companies and businesses including societies and how these impact on the country’s overall development goals? It is aimed to act as a unique platform for groups like women, children and persons with disability have a disproportionate share of the country’s opportunities yet the constitution will often be singing equality of all.

The climax of the APRM is the Summit of Heads of State and Government such as the one slated for this weekend in the Ethiopian capital city Addis Ababa where following presentations of Country Reports from a country that has successfully undergone a review, the other Heads of States (Peers) are given opportunity to share experiences (experience sharing) on how to address some of the challenges the review may have unearthed.

In terms of the original intent, the architects had hoped the Heads of State would use the opportunity to freely critic fellow Heads of State including throwing missiles at each other if that is what it takes to ensure the aims and objectives of APRM. Unfortunately, this has not yet happened and it bis unlikely it would happen. African Heads of State are still very much shy on taking head on fellow Heads of State.

Rather, most of them stand up only to congratulate the one who has just gone through the review often completely ignoring the challenges identified in the Report either because they are shy or out of fear that they coud be opening themselves to similar attacks or worse when it is their turn. There is only one exception, however, and this is when former president Thabo Mbeki and late Ethiopian Prime Minister Meles Zenawi would take the floor. Perhaps because both were trained economists, they would always be the only ones who would disagree with each other’s positions.

Given above, it is quite clear that Zambia will come out shining from the peer review process just like others before because APRM is not like Amnesty International or Human Rights Watch. Its main weakness is that it is primarily ‘Head of State driven’ which makes it almost like another club of Heads of States which have failed us in the past. Secondly, the final product of APRM the Programme of Action till now has not had its status clarified in the national domain of participating countries. Most participating countries simply are not sure what to do let alone how to integrate the PoA into the national fabric.

Third, the anchoring of the APRM on the personalities of the Heads of State of Participating countries ignores existing convention in international law where states and not the persons of Heads of States are the ones that commit to the obligations a treaty would provide. Fourth, the AU is, of course, a bad ‘marketeer’ of its programmes. Little has been done since the inception of APRM to popularise the idea among ordinary Africans as strategy to internalise the concept and promote its ownership among them.

Public perception of these grand programmes such as the APRM they are nothing but efforts by leaders to white-wash the endemic problems African people face and this is not far from the truth. If ten years later, a concept like the APRM remains largely unknown to the poor for whom it is intended, what would be a better explanation than white-wash? Like most state and particularly Head of state-driven elitist concepts, APRM isn’t the solution the poor Africans need to address their plight.

To become one, it urgently needs to undergo serious localisation so that, for instance, the Head of State’s presentation does not go on record unchallenged by citizens as is the case now. Africans must take control of their destinies. Time to leave one’s destiny with leaders or government is long gone. For example, what does ‘good governance’ means at this juncture in the Zambian context? One, it means Zambians must ‘take over’ the constitution making process completely.

No one, not even government, can write your constitution for you and this is what APRM should entail. You do not only have a right but a duty to take over every inch of Zambia from police or government for your meetings, assemblies and gatherings. Anything short of this is simply slavery under the guise of law and order!

The Author is a University of Pretoria Law Professor in South Africa

Professor Hansungule adds International dimension to debate on immunity of presidents

Date: 26 January 2013
Publication: Zambia Watchdog
URL: http://www.zambianwatchdog.com/?p=50058

Dear Editor,
May I just add one dimension to the excellent article on the above subject in your online paper of today found here. While I entirely agree with the conclusions drawn in this article, I would just like to add one aspect to it: the international dimension of the Head of State Immunity.

 

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But before I do this, I must make one observation which is that many countries have this clause cited in your excellent article by their constitutions. As you will recall, this is the same clause that cheated the former Chilean dictator General Pinochet after he retired from office to continue performing public functions including undertaking that visit which took him to the United Kingdom where he was arrested on indictments issued against him in other European countries where his victims of his barbarous misrule lodged formal complaints. Save for merely mentioning it, Pinochet’s case was in public domain and there will be no additional value repeating it here. On return home after British authorities by the narrowest of margins in the House of Lords set the arrest aside but not before he tested deprivation of liberty, his Parliament removed his immunity and he was prosecuted at home. The rest is history.

As indicated above, immunity clauses are widespread in many countries’ constitutions. Their origins may have been genuine being designed not to confer decorum on the holder of the office of head of state as such but to genuinely protect him or her from actions criminal or civil which while innocently and in good faith he/she performed the office of head of state may have committed or omitted to do In simpler terms, the law recognized the reality that a holder of an office like that may inevitably ‘step’ on citizens’ tolls and hence the latter’s grievances which may end up in court. Therefore, the law came to act as some kind of shield to protect the head of state both while in and outside office.

South Africa stands in stark contrast to most jurisdictions in this regard. The South African constitution simply doesn’t have any clause on immunity. Most of your readers will recall that it is on the basis of this that incumbent president Jacob Zuma is as we read this currently ‘in’ court dragged there by opposition Democratic Alliance (DA) who are boldly challenging the manner in which the previous Director of the National Prosecutions Authority Advocate Mpshe, now acting Judge of the High Court, dropped state charges of corruption leveled against president Jacob Zuma.  On his part, president Zuma realizes the danger this case poses to his dignity and that of his political life and of course he did put several measures to counter any such prosecution most notably use of electorate on the ground to keep him in office because that way, he is practically protected even if the law is silent.

The point I wanted to share though on this particular aspect is that if you look at the international dimension of Head of State immunity, you soon realize that however cleverly these clauses may be crafted, they have no status in international law. In international, it has long been settled that anyone subject of allegations of committing international crimes whether head of state or not and whether in or out of office is amenable to prosecutions. There is a court ruling to this effect. The Sierra Leone Special Court of Sierra Leone (SCSL)  has ruled in the Charles Taylor first case (not this one in The Hague in which he was slapped with a 50 year sentence anyway which he is currently appealing) that Head of State immunity does not attach to such an individual accused of perpetrating international crimes. Charles Taylor brought this case while still in office when his indictment and arrest warrant was opened and had argued that the indictment and warrant so issued violated his Head of State Immunity. Unfortunately for him, the judges disagreed and we know where he is now.

Except it is in the genes of leaders not to learn, it is now a well settled law and practice that an individual who is suspected of perpetrating international crimes, namely, genocide, war crimes; and crimes against humanity simply cannot be allowed to hide under the statutory immunity clause in his or her countries’ constitution or organic law.

Clearly, international law has advanced while local law of most jurisdictions remains static thereby creating this open lie. Citizens would understand that while Zambia has an immunity clause in the constitution which in any case is not absolute, the Zambia has ratified the Rome Statute of the International Criminal Court (ICC) against the background of renewed enthusiasm in the United Nations through the Security Council to establish ad hoc tribunals in Rwanda, former Yugoslavia, Sierra Leone already mentioned and in other countries.

Professor  Michelo Hansungule

ACC can't probe a sitting minister properly, says Hansungule

Author: Ernest Chanda
Date: 10 October 2012
Publication: The Post Online
URL: http://www.postzambia.com/post-read_article.php?articleId=29187

THE ACC cannot properly investigate a sitting minister, says Professor Michelo Hansungule and Anglican Diocese of Eastern Zambia Bishop William Mchombo says the ACC's preliminary investigations into the alleged corrupt activities of justice minister Wynter Kabimba and his defence counterpart Geoffrey Bwalya Mwamba shows that the statutory body can do a lot of good for the country if left to operate without interference.

 

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Commenting on Anti Corruption Commission (ACC) public relations manager Timothy Moono's disclosure that the institution was investigating the two ministers for alleged corruption, Prof Hansungule said such an undertaking would be too difficult.

Mwamba is alleged to have physically solicited a contract to supply poles to Zesco while Kabimba is alleged to have played a role in awarding an oil procurement tender to Trafigura, which allegations they have both denied.

The South Africa-based Professor of Law said the best thing would be for the two ministers to resign.

"Whistleblowers will think twice to cooperate knowing the minister they are reporting might be watching them in the shadows. Don't wait until it is established because it won't be established once you are 'sitting' in office," Prof Hansungule said yesterday.

"Ministers should resign the minute there is a perception, mere perception - that they engaged in conduct that was untoward. This should be the standard. Mrs Rosewin Wandi, the head of the ACC cannot easily investigate her seniors if they don't vacate office.

Vacation of office is prerequisite to effective investigation and in any case it shows democracy."

He said stepping aside was also important in appealing to the conscience of one perceived to be corrupt.

Prof Hansungule said resignation also showed that one was there as minister just to serve and could survive outside without the ministerial flag.

"Ministers and other officials must help ACC discharge its functions.

The President should help the ACC and other state institutions fight corruption. This is not possible if those perceived to be corrupt continue to attend cabinet meetings and executing ministerial duties surrounded by state intimidating powers," he said.

Prof Hansungule said although he had a personal relationship with Kabimba, he would still give professional advice to him.

"I personally will expect ministers GBM and Wynter Kabimba to step aside to allow for independent effective investigations into these serious allegations. I don't know GBM and have never met him before. I am sure he too doesn't know me," said Prof Hansungule.

"But I have known Wynter Kabimba way before as a personal friend. You can imagine given this background how embarrassed I am to have to read these accusations. However, because he is occupying a senior government position, my views about his alleged corruption are way beyond friendship."

And Bishop Mchombo said the investigations would give an opportunity to the ministers to be heard and exonerate themselves.

He said the ACC did not need undue pressure from politicians.

"The fact that these investigations are set to be carried out against serving ministers one would say that government is serious about fighting corruption in all sectors of our society regardless of persons involved," he said.

Bishop Mchombo said the fight against corruption required concerted efforts.

"Time and gain President Michael Sata has said corruption is murder. It requires the concerted effort of everyone to bring it to a stop.

Otherwise, it will kill our consciences and we shall accept it as a norm to the detriment of equitable sharing of the national wealth and consequently to the adverse development of our nation. We expect leaders in government to lead in an exemplary manner as they hold positions of leadership and the national wealth in trust for the whole Zambian citizenry," Bishop Mchombo said.

He also said there was great need to strengthen bodies such as the ACC and police service to become more proactive and not reactionary to issues they are supposed to tackle within their given mandates.

"While carrying out their preliminary investigations, the officers should not be blind to the assumption of the innocence of the accused until proven otherwise in a competent court of law," said Bishop Mchombo.

(Zambia) Coat of Arms, National Anthem outdated - Prof Hansungule

Author: Ernest Chanda
Date: 29 August 2012
Publication: The Post Online
URL: http://postzambia.com/post-read_article.php?articleId=28739

PROFESSOR Michelo Hansungule has proposed that the Coat of Arms and National Anthem be changed because they were outdated and gender insensitive respectively.

"It (Coat of Arms) is outdated. The man in short trousers and woman in apron represent the colonial era man and woman which is clearly antiquated.

Similarly, in the national flag, the Coat of Arms needs change particularly in view of the cosmopolitan nature of the emerging Zambian population," stated Prof Hansungule in a paper he submitted to the Technical Committee drafting a new constitution.

"The colour 'black' on the flag could collide with the principle of equal, non-racial and non-discriminatory society the country is building. These features were relevant at the time of independence.  Reference to 'free men' in the National Anthem even if read to include women may be interpreted to be patriarchal and gender insensitive.

Second and most important, the Zambian National Anthem is the same as the South African National Anthem which raises serious questions of sovereignty and related intellectual property issues."

 

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Hansungule, who is a South African-based Professor of law, submitted that though not specifically mentioned in the draft constitution, the Coat of Arms needed to be changed.

He observed that there was also no civic education on critical issues before the constitution-making process was started and no clear information on the role of the Executive and the legislature in the process.

"I strongly feel the procedure being used is wrong, totally wrong. You don't go to the people who are not in a constitutional law classroom without prior civic education on key issues like separation of powers, why a judiciary should be independent and from whom," he stated.

"They should have made summaries in local languages of Mung'omba, Mwanakatwe, current constitution, and other instruments as part of civic education. Second, there is no procedure on what happens next, the role (s) of key players like the President, Cabinet, Parliament, and the time frame, etc."

He stated that since the terms of reference reflected the wishes of the people, they should not have been drawn by the government.

Prof Hansungule stated that government should have just facilitated the process by mobilising resources.

"Given this, it is a great pity that the terms of reference and the Technical Team were appointed, in fact 'singlehandedly' picked by the Executive," Prof Hansungule stated.

"Normally, government should merely have facilitated the process by mobilising the resources and stakeholders to meet, draw the terms and appoint the team. This is what would have given legitimacy to the process, a pre-condition for a successful outcome.

Unfortunately, both the process of setting the terms of reference and the selection of members of the technical team, including their chairperson and vice chairperson was a matter for State House or for the Executive which echoes past steps under which constitutional reviews were a matter of the Executive through the colonially-instituted Inquiries Act."
On the technical team, Prof Hansungule said some of the people included did not deserve to be there.

"Though the word 'technical' was used, most of those selected had no visible technical expertise to bring in the team. What technical expertise did the headman or chief bring? It was utterly wrong to include chairpersons of past constitutional reviews in the team instead of independent professionals and the past chairpersons to supply information when relevant," he stated.
He stated that the worst part was the appointment of the minister of justice as a member of the team.

"This created the perception that the Executive would like to control the process and would not stand a fiercely independent process. The team should have been free of the Executive members.

Similarly, the chairperson and his vice should either have been chosen by stakeholders in a sovereign conference or by the team selected by stakeholders.  As it is, the impression is that the technical team had the support of the government that appointed it but not of the public to whom the Constitution belongs."
He stated that it was a gross mistake for the government not to have legislated the process.

Prof Hansungule said legislation should have determined issues at large concerning adoption, role of the National Assembly, role of the President and Cabinet, and many others.

"Given our past where 'White Papers' frustrated what people wanted, it would have been important to set the record straight on these key issues.

For example, the law would provide that the government and Parliament cannot change the draft constitution even though 'draft' and that the National Assembly would merely enact it into law once adopted by the sovereign conference," Prof Hansungule stated.

On the referendum, Prof Hansungule stated that it was necessary to hold it because, according to him, the current bill of rights had failed the citizenry.
He emphasised the inclusion of a 50 per cent plus one threshold for a winning presidential candidate to enhance legitimacy.

"The present President is a minority winner and so were the previous presidents. This explains why once in office, the President due to insecurity, spends most of his time 'stealing' the opposition to his side rather than delivering on his mandate. Having experienced the negative effect of a minority president the past 50 years, Zambia has no option but to adopt the 50 + 1 per cent massively recommended by the broad masses of citizens," he stated.

"This, unlike the bill of rights, has no technical problems requiring referendum as it falls outside the entrenched clauses. The Patriotic Front government has a duty to respect this in order to show its good faith."
On the size of the draft constitution, Prof Hansungule said it was too long.
He stated that the constitution should be reasonably short and user-friendly.

" What the draftspersons did was simply to include everything and in some cases repetitively. It is clumsy. It should be possible to 'carry it around 'in a pocket which is not possible given the current oversized length.  A 'huge forest of wood of legal jargon' is most certainly not what the Zambian public expect," stated Prof Hansungule.

Let’s help elect a female World Bank head

Author: Prof Danny Bradlow
Date: 1 March 2012
Publication: Business Day
URL: http://www.businessday.co.za/articles/Content.aspx?id=166279

THE World Bank needs a new president. Historically, he has been selected by the US president. This is unacceptable and must change. In fact, there is agreement that there should be a transparent and merit-based selection process.

 

That the Europeans and their allies reneged on this commitment when they selected Christine Lagarde as the MD of the International Monetary Fund makes it even more important that the World Bank sets the precedent of how a transparent and merit-based selection process should work. Doing so will require the Brics countries (Brazil, Russia, India, China, SA) and the other emerging market members of the Group of 20 to behave more responsibly than they did in the Lagarde case.

What does this mean for SA?

Since 1994, SA has been an eloquent advocate for reforming the governance of the international financial institutions. The selection of the next World Bank president is a good opportunity to win an important victory in this campaign. Our government should work with other African states, our partners in Brics and other sympathetic World Bank member states and with allies in international civil society to ensure that there is an open and merit-based selection process.

The stakes are high. This appointment is about more than just finding a World Bank leader who is a competent non-American. It is about finding a leader with the skills, experience and commitment to make a complex institution more responsive to the evolving needs of all its stakeholders: its debtor and creditor member countries and their citizens — who are the intended beneficiaries of the bank’s operations but who can also be harmed by them. It is about finding a president who will ensure that the bank has the requisite organisational and technical capacities to work with its borrower countries to meet their most urgent challenges — finding growth strategies that reduce poverty, inequality and unemployment within constraints created by climate change and other environmental stresses.

The World Bank’s board understands this appointment is as much about transforming the bank as about reforming its selection process. In April last year, it declared that the next president should have "a proven track record of leadership; experience managing large organisations with international exposure, and a familiarity with the public sector; ability to articulate a clear vision of the bank’s development mission; a firm commitment to and appreciation for multilateral co-operation; and effective and diplomatic communication skills, impartiality and objectivity in the performance of the responsibilities of the position."

The president will also need some other attributes. For example, we know that it is wise for international organisations such as the United Nations to have leaders from middle-sized countries because they do not unduly upset delicate geopolitical balances and they are more likely to understand the concerns of powerful and weak countries.

Based on this list of qualifications, there is an obvious South African candidate — Trevor Manuel ; but he is still building our National Planning Commission. This is perhaps fortunate because it is time to select a woman as the head of the World Bank. A situation in which the leaders of the two most important international financial institutions are headed by women will send a powerful message about the importance of gender equity and the need for all countries to make full use of the skills of all their citizens.

Two African candidates quickly spring to mind — Mamphela Ramphele and Nigerian Finance Minister Ngozi Okonjo-Iweala. Both are well qualified; they have had experience transforming complex institutions under difficult circumstances; and they have had experience working at senior levels in the World Bank. Ramphele has also worked in both big business and small grassroots development projects — the kind of hands-on experience the next president should have.

By leading an effort to appoint one of these two impressive women as the new World Bank president, our government can demonstrate creative leadership in the effort to promote global governance reform. It can also show Africa and our partner states in Brics the benefits that our leading role in international economic affairs can bring to them.

The deadline for nominations for the next president is March 23. What are we waiting for?

• Bradlow is SARChI professor of international development law and African economic relations at the University of Pretoria.

Sata has chance to do better than Rupiah - Hansungule

Author: Ernest Chanda
Date: 1 October 2011
URL: http://postzambia.com/post-read_article.php?articleId=23306

PROFESSOR Michelo Hansungule says immediate past president Rupiah Banda lost the election because he did not listen to the people.

 

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And Prof Hansungule said President Michael Sata has a chance to do better than his predecessor.

Reflecting on Banda's loss in the just-ended presidential election to President Sata, the Pretoria-based law professor said the former head of state chose to be arrogant to everyone.

"One of the biggest lessons from Rupiah Banda's short-lived presidency is the importance, especially to political leaders, of listening to citizens. It is ironical that the outgoing president said during his concession statement that ‘Zambian people had spoken'. Why could he not say this to himself a long time ago? Had he listened to citizens, president Banda would have no problem reclaiming the presidency for the second term," Prof Hansungule said.

"With his self-inflicted loss, president Banda has broken a record in the SADC as the elected head of state to have been in office the shortest period. President Mandela served a full term before he voluntarily exited from office and in any case left his party the African National Congress firmly in office. Political arrogance is what cost President Banda his chance to have a full term."

Prof Hansungule said there were many wrong things Banda did which offended the voters.

He said the people advised him on many wrong decisions he made but he would not listen.

"President Banda would not listen when people told him they did not like his constitution and the way he went about dictating how it should be written; they wanted the London judgment against (late Frederick Chiluba) to be registered and enforced in Zambia.

They wanted an appeal against Chiluba's acquittal from corruption. They did not like his comments alongside the magistrate Jones Chinyama who acquitted Chiluba because they suggested the magistrate's hand was twisted into doing something else on the case than the law dictated," he said.

"They told him they did not like the way his administration was going about abusing the judiciary. They did not like the president's decision to dissolve the Task Force on Corruption.

They told him they did not like his decision to stop tampering with a good law on corruption by public officers. They did not like the way he handled the Dora Siliya-led sale of ZAMTEL and that she suffered no sanction even when she clearly treated the Attorney General's legal advice with contempt."

Prof Hansungule said even when people told Banda to reintroduce the windfall tax on the mines, he did not listen.

He said people wanted Banda to be tough on investors who treated their workers miserably, but he ignored them.

"They did not like the way he handled the take-over of Finance Bank and its hasty sale to the South African Bank a few days before the elections. They told him to avoid abusing public resources for his political gain," Prof Hansungule said.

"They told him he should not abuse the public media to promote only his agenda and completely shut out opponents. They told him to cage his vice-president and minister of justice George Kunda and to be careful with the ‘advice' he gave on the media and governance in general.

People told him to stop rearing ‘dogs' to set out against perceived political opponents through vitreous attacks in the public media. They told him he was wrong paying from public resources for his opinion polls (in fact Rupiah Banda's opinions) which always returned a ‘win' only for him because besides being abuse of public resources, this offended the public trust."

He said even when people told Banda to stop using his wife in MMD errands paid for by the taxpayer, he remained arrogant.
Prof Hansungule said Banda had also abused traditional leaders to the extent that it offended their subjects.

"They told him not to open fire on unarmed youths in Mongu but to dialogue with them on their demands and not to charge their leaders with treason. They even warned him that he cheated on affidavit that both his parents were Zambian by birth and descent," Prof Hansungule said.
"They told him everything a good president would want to hear to improve on his governance but he would have none of it.

They told him to enact into the constitution the 50+1 result for the winner and if he had, we would be going for the next round of election for the presidency. But of course he chose to listen to Kunda. The result is that except probably himself and his cronies, everyone knew that in a free and fair contest, he would lose this or any election."

And Prof Hansugnule said people expected a lot from President Sata because they knew him as an action-oriented person.

"The good thing about President Sata is that we all know him. No Zambian would say ‘Michael who?' Due to his accomplishments, particularly his well-known tag as a hands-on man; his name is household in all Zambia. All he must do, however, is to develop capacity to listen to citizens," said Prof Hansungule.
"I had read about a powerful leader who was so popular and likable across the political spectrum not because he went round giving sweets to his people but because of his ‘power to listen'.

In fact, listening to citizens is the meaning of good governance. Your very good excellently crafted policy may not be good to people. While leading does not mean taking into account every advice from people, it means listening to them. I would rather citizens mislead me and not officials. President Michael Sata has a chance to make a real governance difference."

Lessons from “L’Affaire Lagarde”

Author: Prof Danny Bradlow
Date: Issue 8 August/September 2011
Publication: Heinrich Böll Stiftung G20 Update E-Newsletter
URL:
http://www.boell.org/downloads/G20_Update_8_5.pdf

When Dominique Strauss-Kahn became the IMF Managing Director, European leaders acknowledged that the “gentlemen’s agreement” that ensured that the IMF is always led by a European and the Bank by an American was an anachronism and should end.

 

Soon afterwards they solemnly promised in a G20 summit communiqué that future heads of the IMF and World Bank would be selected through transparent procedures and on the basis of merit.

Of course, that was before the Europeans decided they needed IMF assistance. Unsurprisingly, they concluded that they “needed” another European IMF Managing Director. The result is that the new IMF Managing Director, like all her predecessors, is a European and that her first Deputy, like all his predecessors, is an American. The Europeans’ action substantially undercuts all the hard work that officials from the developing country members of the G20 and activists
from international civil society had done to promote governance reform in the IFIs. This forces us to critically reassess the prospects, and tactics for achieving such reform. This paper attempts such a reassessment. 

 

Hansungule demands delay of election

Author: Ernest Chanda
Date: 22 August 2011
URL: http://postzambia.com/post-read_article.php?articleId=22738

PROFESSOR Michelo Hansungule has demanded that President Rupiah Banda postpones the elections to allow for serious investigation into the corruption surrounding UPG.

And Prof Hansungule says the Anti Corruption Commission (ACC) has discredited itself by harassing sources of information.

Commenting on the continued corruption revelations surrounding Universal Print Group (UPG), a South African company engaged to print ballot papers for this year's general election, the Pretoria University law lecturer said government should not bury its head in the sand and behave as though everything were normal.

 

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Prof Hansungule said the coming general elections were already tainted with what he termed "deep-seated suspicions".

"The elections must be postponed to give time to look into this electoral tender issue. It is a serious allegation. Government has a duty to heed public sentiments about suspected electoral fraud by this Universal Print Group thing," Prof Hansungule said.

"You can't go into an election with such dark clouds hovering around the horizons ready to pounce on the event. Or does it not matter to President Rupiah Banda the conditions under which he is elected to second term? What exactly is behind this hugely embarrassing scandal?"

He said instead of denying that the tender or the company involved might have raised corrupt suspicions, government should have led calls for thorough investigations also into the capacity of the Government Printers to do the job.

Prof Hansungule wondered why the government could not trust Zambians to print the ballot papers when they had done it before through Government Printers.
"Why this type of ‘thinking' after half a century of independence?

And even if the Government Printers had no capacity to do the job, where was government the whole of these years to give it the necessary capacity? Do the right thing and postpone the elections to seriously look into these allegations," he said.
And Prof Hansungule asked the government to stop tutoring the ACC on what it should and shouldn't do.

He said as a creature of statute it was important that the ACC was left to operate freely, particularly during election time.

"The sad picture now is that someone is micromanaging it and this is a shame to the commissioners and officers there! There should be absolutely no perception that government is colluding with senior echelons at the ACC to undermine the mandate of the corruption-busting body," Prof Hansungule said.

"The ACC has discredited itself in harassing important sources of information for their work. Sad as it is, ACC director general Lt Col Godfrey Kayukwa's mishandling of Given Lubinda and Fred M'membe is indicative of the power of the hidden hand micromanaging the corruption buster for his own interests.

Were it not for the hidden hand, there would absolutely be no need for DG Kayukwa to descend into panic and summon the two simultaneously as he rushes to the press to announce the same summon instead of waiting for the summoned to appear or respond to his summon."

He reminded the ACC that public institutions had a duty to inspire confidence in the way they discharged public duties.

"DG Kayukwa referred to ‘procedures' of doing things at ACC. Can I ask him: Is it procedural at ACC to summon someone and then rush to the press to announce the summon? It is gross misbehaviour for the corruption buster to so publicly pander to authorities instead of playing it professionally," he said.

"The Anti-Corruption Commission has a clear mandate to fight corruption in Zambia. In order to assist it do this, Section 5 of the ACC Act invested the Commission with ‘autonomy' wherein it is clearly stated that ‘the Commission shall not be subject to the direction or control of any person or authority'.

I want to underline ‘authority' and say it is crucial to the work of a corruption buster to be in control of itself ignoring all authorities. Why is it that over this issue of the Durban printer engaged to print this year's election ballots, the ACC's statements about there being no corruption suspected in the awarding of the tender so conspicuously echo those of the government and the Electoral Commission of Zambia?"

He wondered why the three institutions should be unanimous in their public statements despite their different roles and mandates.

Prof Hansungule said the ACC could not rush to issue statements denying corruption where it had received information calling for investigation.
He said it was a dismissible offence for ACC officials who acted contrary to their mandate.

"Section 9 of the ACC Act clearly imposes a statutory duty on the ACC to ‘prevent and take necessary measures for the prevention of corruption by public and private bodies. In relation to the ECZ and this Universal Printer thing which I am sure is not universal, what measures did the ACC take to prevent corruption in the awarding of the tender?" he asked.

"The ACC knows as we all do that elections are big time for corruption, what measures did they put in place to prevent tenderpreneurship as required of them by statute? The Act also provides that the ACC should advise public and private bodies ‘on ways and means of preventing corrupt practices'. Can the ACC publish their advice to the ECZ over awarding of tenders for the forthcoming elections?"

Prof Hansungule said Parliament did not empower ACC to refuse and issue announcements such as the one they issued on UPG.

He said that was being political and a clear disrespect of a simple provision of the law.

"What the public expected from the ACC is a statement saying ‘following complaints received and after investigations, this is the outcome', either confirming or rejecting the complaint," said Prof Hansungule.

"Instead of harassing the Given Lubinda's and Post newspapers, summoning them like children and consequently embarrassing them, the ACC should be appreciative of the role institutions like independent media play in doing what the ACC should in fact be doing. Harassing the public for alleging corruption is contravening the very letter and spirit of the ACC."

 

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