Case Summaries and their place in Law School

Introduction-

Case Summaries are an important part of Law School. Since Zambia clings and follows to the British Common Law system of following laid-down precedents of cases, it is very important to understand the holding and reasoning of judges in decided cases. Case law holds a very special place in my heart because I believe it is the epicenter of legal reasoning and also the machinery used for the establishment of legal principles. For example, what would the world be without Lord Atkin establishing the ‘Neighbor Principle’ in Donoghue v Stevenson? Where would we be without Lord Denning’s wise words on Promissory Estoppel in Central London Property Trust v High Trees House? More recently and coming closer to home, where would the excitement of legal commentators be without the holding of Kapesh v The People when the Supreme Court of Zambia decided to break its own precedent and laid down principles in which a belief in the existence of witchcraft was to be an extenuating circumstance to Murder? The list goes on and on.

What is Vigilante Scholar’s place?

At the tail-end of every summary that is churned out from Vigilante Scholar, the following precautionary words are uttered: ‘ Vigilante Scholar is not a body licensed with dispensing legal advice in the capacity of a legally mandated government authority…’ (the rest is history). These words are not only a safeguard against potential legal suits in copyright infringement, they are a snapshot of the ethos that has shaped the website from its inception i.e. to Read & Inspire. I always a joke with most of my friends that I might as well have had an L-R syndrome in coming up with that motto… It could have been Lead & Inspire. In whatever circumstance, be it Lead & Inspire or Read & Inspire, the following point is communicated: inspiration should stem from knowledge that is acquired from different sources to encourage discussion about issues that not only affect the Law in Zambia but also the World at large.  

As you can see at this point, the goal of Vigilante Scholar is not necessarily to play the role of teacher (actually far from it) but rather the goal is to inspire people to apply the knowledge that they already possess to bring about change. Quite idealistic, I know…

So coming to case summaries, they are NOT intended to substitute the actual full reading of a particular case. If anything, they are meant to remind the person who intends to use them of the essential Facts, Legal Issue(s) and the Holding of the Court. For a lack of better terms, they are statements of opinion on what a particular case was about, not necessarily a legal report. Now, to begin with, why summarize a case and publish it online? Well, partly the reason is because we can. Cases shouldn’t die in Textbooks then later on resurrected in Exams by a Brain that is too stressed to go beyond rote memorization. They are more deserving than that! The ingenuity of Judges cannot be relegated to only paper and pen when the effect of those Judgments transcend not only time (because some judgments are really old e.g. Donoghue v Stevenson) but also generations to come.

Tips before reading V.S. Case Summaries

Made with courtesy of https://www.canva.com

Tip #1: Read the Full Case

I know this feels counterintuitive especially when you are pressed for time, however, I believe it is necessary. Like I said, the ingenuity of Judges cannot be relegated to only paper and pen. The full case shows you the depth of reasoning which no Case Summary could ever unravel no matter how competent the skill of the Summarizer. Besides, the full case brings in the arguments of Counsels. Arguments which were well-thought out and prepared for that case in question. These arguments teach a thing or two about certain legal principles although the Judge may reject them as inapplicable in a particular case. Beyond that there is also the Obiter Dicta (words made in passing)of Judges which may be used as Ratio Decidendi (Reasoning of the Court)in other cases. Always remember that if the person who summarized the case had the tenacity to read all of it, then you too can achieve a similar outcome.

Tip # 2: Research the Legal Principles in the Summary

Jesus once said, “Be therefore perfect, just as your heavenly Father in Heaven is perfect”. It is a goal that I have (and perhaps most people) strived to achieve. However, with every step into the right direction, there always seems to be one universal obstacle: Humanity…

You could have the Ambition of Alexander the Great, the Fortitude and Skill of Achilles and the Wisdom of Socrates but one thing you cannot have is the ability to separate imperfection from Humanity.

Mistakes in making Case Summaries are bound to be made. As long as the creator of the summary is a Human Being, that is definitely possible. Not only can grammatical errors be made (which I make a lot), but also perhaps errors in understanding Legal Principles. It is best to assume that the only way to eliminate that threat is to verify the information through research and discussion.

Research is an art on its own but all in all the chief take away from this tip is that be open-minded and be careful on the information you take to be true.

Tip #3: Read, Read and Read some more…

Last but definitely not the least, READ! There’s simply no substitute for reading. Period! As far as memory retention goes. The best time to read is in the morning or the hours before you sleep.

“While we sleep, the part of the brain that stores recent information (the hippocampus) ‘tells’ the part of the brain responsible for deeper levels of information (the cortex) what has happened that day. Then, the cortex processes that day’s experiences and attempts to make sense of everything, deepening understanding and making links between recent experience and deeper, stored experience. In other words, any information from the day that the cortex thinks is worth remembering gets assimilated into the brain overnight.”

Law Express Exam Success, Emily Finch . Page 63-64

Apart from that, online University Repositories are invaluable in understanding legal principles. This is so because they are explained in light of difficulties that are haunting the legal world right now. My personal favorite is the University of Zambia online repository. You can find it here.

In conclusion, read cases with guided skepticism. In fact, critically analyze Vigilante Scholar cases, form your own opinion and if it happens to better, feel free to air out your opinion.

The Barefooted Lawyer

Lessons on work ethic from Abraham Lincoln

There are a few men who have influenced American political history as the 16th President of the United States, Mr. Abraham Lincoln. His Christ-like patience led America through its bloodiest conflict and prevented its annihilation. Had a lesser man been in his position, there’s no shadow of a doubt that the United States as we know it today would have been relegated to the fallen empires of history. Although his presence in this world was robbed too soon by an assassin’s bullet, his impact, nonetheless, remains undiminished. No wonder thieves attempted to steal his body after his death and ordinary people smeared their handkerchiefs with his blood as a souvenir. I admit that I am a self-proclaimed fanatic of Mr. Lincoln and I owe a lot of my life principles to him. Sometimes when people push me to the edge, I catch myself thinking in the words of Theodore Roosevelt, ‘What would Lincoln have done if he had this problem?’ His life, at least to me, is a source of great strength and encouragement.

American Civil War 1861-1865: Picture adapted from skyminds.net

In my reflections, I often wondered how a person who had less than a year of formal education came to be a lawyer and ultimately President of the United States. The answers revealed a lot. Not only about politics and leadership but also about determination. Although I could talk about so many aspects of the slain President’s life, I will focus only on his impact on work ethic. To put things in simple terms, Abraham Lincoln got the job done in whatever he put his mind to.

Wounded Buffalo

Whether this means it was done successfully or not is another discussion. I would describe his work ethic and determination as that of a wounded buffalo. It wasn’t based on natural talent and skill but on a pure determination to get the job done. Amid heartache and disappointment, he dogged his way through his challenges with incredible courage.

For example, he had to walk for at least three miles just to borrow law books. One schoolmaster had recounted that he had taught more than five thousand students, but Lincoln was the “most studious, diligent, straightforward young man in the pursuit of knowledge and literature” he had ever met. He would study the law for hours and often seemed absorbed in a different world entirely. Eye-witness accounts say that he always used to carry a book in one hand and an ax in the other. After cutting down some trees, he always used to take some time out to read after taking a rest.

Statue in Chicago, Illinois of Barefooted Teenage Abraham reading a book

When I look at how hard lawyers generally have to work to establish their reputations, I never go far in thought before considering him. In Zambia, it is a well-known fact that clearing the Law Practice Qualifications Examinations (LPQE) at the Zambia Institute of Advanced Legal Education (ZIALE) is no walk in the park. It’s quite tough. However, I believe that the media don’t really appreciate the high standards of professionalism that are expected of a lawyer. In all my research on the topic, I have found that a good legal system depends on what type of lawyers are in it. Historically, this profession was only secluded to royalty and for good reason. Good judgment and rational thinking are a strange combination that most people don’t have. The law is probably the oldest profession in the world and we can even trace its origins in the Biblical book of Genesis. One humorist actually said ‘the devil must have been a lawyer…he made Adam breach the contract he had made with God and ultimately sucked humanity into the mess it is in. Even the devil is described as a prosecutor of the brethren.’

A humorist’s idea of a deal with the devil

Putting the jokes aside, I think the law requires a practitioner to have an incredible work ethic. After all, the more experience you have as a practitioner the better you become at dealing with legal problems. You have to admit that being a lawyer is not as easy as they would want us to think. You are dealing with a profession that is tasked with interpreting documents that were written by someone who is dead or for some good reason, cannot be consulted. Myles Munroe actually said,

‘the reason why they call working as a lawyer ‘practice’ is that that’s exactly what it is: Practice. It needs to be practiced for it to be effective.’

Leadership mentor and enthusiast, dr. myles munroe

Turning to our barefooted lawyer, we could see that Lincoln met these standards quite well.

Another thing that is worthy of note about Lincoln’s work ethic was the compassion he had for his clients. There are not many accounts of Lincoln’s law practice because it often gets shadowed by his political successes. However, Dale Carnegie’s book suggests that he was a very compassionate hard-working lawyer. Dale said, ‘Many of his clients, he said, were as poor as he, and he didn’t have the heart to charge them much. Once a man sent him twenty-five dollars; and Lincoln returned ten, saying he had been too liberal. In another instance, he prevented a swindler from getting hold of ten thousand dollars’ worth of property owned by a demented girl. Lincoln won the case in fifteen minutes. An hour later, his associate, Ward Lamon, came to divide their fee of two hundred and fifty dollars. Lincoln rebuked him sternly. Lamon protested that the fee had been settled in advance, that the girl’s brother was entirely satisfied to pay it. “That may be,” Lincoln retorted, “but I am not satisfied. That money comes out of the pocket of a poor, demented girl; and I would rather starve than swindle her in this manner. You return half this money at least, or I’ll not take a cent of it as my share.”’ In my opinion, this kind of compassion is what really shaped his work ethic. You see, he wasn’t just working to get a salary at the end of the month. Although that was important as well. He really felt that what he did really changed and improved the lives of his clients and the people around him. This compassion actually spilled over into his time in the white house. Most presidents never really feel the need to associate with the commoners or at least struggle to do so because of security reasons. Lincoln, on the other hand, had no such qualms. In a letter addressed to a mother who had lost five of her boys in the civil war, he wrote his condolences in words that could be described as some sort of unconscious poetry. He said,

‘Dear Madam, —

I have been shown in the files of the War Department a statement of the Adjutant General of Massachusetts that you are the mother of five sons who have died gloriously on the field of battle.

I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming. But I cannot refrain from tendering you the consolation that may be found in the thanks of the Republic they died to save.

I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom.

Yours, very sincerely and respectfully,

A. Lincoln’

Letter to Mrs. Bixby: Boston, 21st November, 1864

There are not too many people of prominence who could’ve said that. In fact, the civil war bore on Lincoln a very sorrowful look. He slept little and ate less. His passionate determination to end the war really took a heavy toll on him. Soon enough, some attendants in the White House saw that their President was treading dangerous waters and suggested that he take a vacation. Lincoln responded by saying that a vacation wouldn’t do him any good because he could not run away from his thoughts. Even in the presence of immense sorrow, he still upheld a very strong work ethic and culture. That’s why he said, “Always remember that your resolution to succeed is far more important than any single thing.”

A picture of Lincoln in the White House

So now, what lessons can be learned from his work ethic? Well, as you can imagine, there are several and I will leave that to you to pick the best ones. For me, personally, I draw a lot of strength from his obsessive-like determination to get the job done. The drive to continue moving forward in the presence of great adversity.

By the way, the reason why I called him the barefooted lawyer is because he often walked barefooted while he worked and studied the law. Like I said previously, he always used to be seen with a book in one hand and an ax in the other. This was a habit that was to remain with him all the way up to his days in the White House. Unlike most Presidents that came before him, he particularly didn’t mind walking around barefooted in the White House.

To be honest, I think Lincoln deserves his seat among the immortals of this world. Even today, his life can be a pillar of great strength. To working professionals, his determination can teach a thing or two about work ethic. History is a good judge and the very fact that his life still inspires today shows that the lessons are still fresh. Fresh for application for anyone bold enough to take the challenge and journey of self-improvement.

‘Rape Chinese!’, The most common words in Zambian Ghettos: Self- Leadership Lesson on Entrepreneurship

Growing up in Zambia has been a ride, to say the least. Like most Zambians, there have been challenges along the way, and yes! I do say challenges and not problems. But I am grateful for the little blessings that God has afforded me, which I should mention that not every person in the country has had. For example, not everyone has had the chance to graduate High School let alone see the four walls of a University. Most of them never make it beyond the eleventh grade and that is due to several genuine reasons. I am not a stranger to this kind of place because I have been on both sides of the coin. I have felt the bitter pain of a long campaign to get yourself to college only to be disappointed by a lack of funds. I have known the loneliness that is found in sitting at a small shop in Chisokone Market only to make less than 5 Kwacha after a day’s work. I believe that for the many Zambians living in Ghettos out there, getting a decent education up to college level looks to be more of the privilege of a few than a reality of the many. Out of work and unemployed, most of them turn to entrepreneurship to be a light to their paths. A beacon of hope in a dark tunnel of immense poverty. Although most of them work from hand to mouth, having an entrepreneurial mind can make all the difference between starvation and making it to the next day.

Entrepreneurship is a special kind of self-leadership that is rare to find among the educated. That is why it usually falls on those who don’t have much faith in the educational system. There’s no doubt that the ability to make wealth is a talent of some sort. Not everyone has been graced with it. However, the level and number of entrepreneurs that spring up in Zambian Ghettos challenge that assumption.

The words ‘Rape Chinese!’ usually exclaimed with vigor, are the most distinctive words you will ever hear in a Zambian Ghetto or Mine Area. Relax! The words don’t literally mean what they imply, I mean that would just be barbaric. They don’t mean that we should go out of our way and rape Chinese people. Rape is a common Zambian relish that is often found alongside our traditional meal, Nshima. Chinese is also another common Zambian relish. I have never really bothered to ask where these names came from but they are very common. It’s quite normal for you to walk to a vegetable stand and tell the seller that, “Hey, I want rape.” Or you would hear old friends telling each other at dinner that, “My wife knew that you like rape and that’s why she served it.” I know, it’s strange. It’s only recently that it dawned on me that this wasn’t probably the best name to give to a vegetable. Anyway, what does this have to do with Self- Leadership, and Entrepreneurship? Well, the answer is in the form of a story. Like I said earlier, most Zambians struggle with finances and they are forced to sell anything so that life doesn’t grind to a halt. One of the ways that they do this is through selling vegetables by making rounds in neighborhoods. They would yell at the top of their voices saying, ‘Rape Chinese’ and a customer would stop them to buy. The same goes for other products like Charcoal and used Car Batteries. There was one man I met who taught me a very important lesson on Entrepreneurship. Usually, selling vegetables like Rape and Chinese is done by women and it is quite rare for you to see a man in that type of business. But this man was different. There was something he was doing that was attracting more customers than most of his competitors. I will tell you about his secret shortly.  You see, it’s not about what product you are selling but it is about how you sell it. At the end of the day, it is the salesperson that makes the money. During my job hunts in Kitwe, I had the opportunity to test this theory out and see if it works. There was a company that was training salespersons to sell lotion and other cosmetic products and I applied for a job. After getting the necessary documents, I was called for an interview. Sitting in that office, I was only bothered by two thoughts: How much are these people going to pay me? and do I really have to talk to strangers to make money? To cut the long story short, I was paired with a mentor, and off we went to convince people to buy our products. My mentor told me that out of 100 people, chances are that 95 people will say ‘no’ to your pitch in selling them the product, only about ‘3’ would say ‘yes’ and the rest would tell you to come back tomorrow. I remember thinking to myself, “Man, those are way too many Nos for me to take.” Going from customer to customer, I watched my mentor use every trick in the book to convince a potential customer to buy. At the end of the day and in an almost prophetic outcome, we had only managed to sell five of our products. We never split the money at that point because I was still a newbie. So, my mentor told me, “Well, you did well today. Make sure to come back tomorrow for more.” Nope, I never went back. I don’t know if it was my ego or my sense of introversion that made me change my mind. Like the many of us, I couldn’t take the brunt of people rejecting my product 95 times in a day and only making a loose commission on sales. Nonetheless, the lesson was learned. In those few hours, my mentor taught me a lot about human psychology when it comes to buying. You have to be charismatic in the way you sell your product. People are emotional creatures and respond to things that make them feel good. I don’t know about you but I think feeling good is a good incentive to buy someone’s stuff. Now, let’s go back to the man I mentioned earlier before I digressed into this tale of tales. The man’s secret into making more sales than his competitors was his charisma. Instead of going around and chanting the common mantra of ‘Rape Chinese’, he added a little charisma to the mix. He was saying in Bemba, ‘Umuti wabwali!’ which translates to medicine for your Nshima in English. Then he added a high-pitched intonation of the word ‘Yeah’ before every sentence. The kids loved it. They would follow him around the neighborhood as he sold vegetables and unknowingly, increase his popularity in the neighborhood. I had also tried to use the same tactic on this post. Be honest, when you first read the title ‘Rape Chinese!’, The most common words in Zambian Ghettos: Self- Leadership Lesson on Entrepreneurship, what was the first thing that came to mind? Crime in the ghetto, right? Raping Chinese women to get some money? All sorts of thoughts came to mind of which, unless you have lived in Zambia, vegetables were the last on that list. I should mention, however, that this wasn’t an attempt at charisma. Lord knows I don’t have the talent for that. But the main point remains: grab the attention of your customers by engaging them through spurs of charisma.

Then, you also have to work hard and sacrifice. It takes a little bit of yourself to be an Entrepreneur. Unfortunately, Entrepreneurship is not one of those skills you can just wake up in the morning and master. It takes time and effort. You must put in long hours of work and discipline yourself to a workable schedule. People will follow and are more likely to buy products from someone who is consistent. From my point of view, the man I mentioned earlier showed a high level of consistency in his work. I observed that he would usually pass by our neighborhood before midday almost every day.  The importance of consistency cannot be overestimated.

“Without commitment, you will never start, and more importantly without consistency, you will never finish.”

Denzel Washington

So, to conclude, always show charisma and consistency in your endeavors. I can bet that you would be able to achieve some sustainable results in doing so.

P.S. Don’t yell Rape Chinese unless you are in Zambia.

ZAMBIAN CONSTITUTIONAL AMENDMENT BILL No. 10

Introduction

What is Bill.10 and why is it causing so much noise? I am going to try to explain as accurately as I can from the perspective of a Constitutional Law student. Unfortunately, the attitude that most Zambians have towards such matters is “Let the intellectuals handle it, our job is only to vote”. Not to sound cynical but that point of view is dangerous as it is poisonous.

Another reason to take interest in this issue is that the Constitution is a document of the people. It’s our document to put it more accurately. That is why it is stated in its preamble

“We, the people of Zambia, hereby give unto ourselves this constitution.”

What is a Bill?

You know, when I first heard this word, I immediately thought of an electricity bill. Initially, I thought people were arguing over an electricity bill because of the Zambia Electricity Supply Corporation Limited (ZESCO) load shedding. My lack of Civic Education was clearly evident. So, your confusion is shared and you should feel at home because you are in the right hands.

Contrary to what I previously thought, a bill is not a nudge urging you to pay some company what is due to them. However, Constitutional (Amendment) Bill No.10 is as problematic as the ZESCO bills. Both of them are products of the same bitter drink of poor leadership that has plagued Zambian politics since the days of President Banda.

So, just to clear the air, a bill is simply a proposed law. Supposing parliament wants to make a law that prohibits the drinking of alcohol, (I know, that can’t happen), they will create what is known as a bill. This bill will then be debated in parliament and if it manages to pass through all the necessary stages, it will become law upon its assent by the president. Bills come in three types: Government Bills, Private Members’ Bills and, Private Bills. Government and Private Members’ Bills are called public bills because they affect the public. An example of a public bill is Constitutional (Amendment) Bill No.10. Now, a Government bill is presented by a Government minister. In this case, Constitutional Bill (Amendment) Bill No. 10 was presented by the Minister of Justice, Honorable Given Lubinda. So, when the government argues that they didn’t propose Bill No.10, that’s a lie because this proposal came directly from the cabinet.

A DIVE INTO HISTORY

Before I give you my analysis of the Constitutional (Amendment) Bill No. 10, I think we must take a little dive into history. It’s with a heavy heart that I have come to realize that Zambia has been looking for a people-driven constitution since the days of independence. However, for some reason, the dry bones in the valley have never become flesh. Previous governments have misused their political power to create amendments to the Constitution that best serve their interests. It’s almost as if every government that comes into power looks at the Constitution as a permission slip, not as a document of the people.

Our dive into history begins with Zambia’s first Constitution which is also known as the Independence Constitution. The Independence Constitution was a document that was put into effect by an Order-in-Council of the British Parliament at Westminster. It had put a lot of power in the President. In fact, it could be safe to conclude that the functions of Governor of Northern Rhodesia (as Zambia know before 1964) were effectively passed down to that of the President. This overwhelming power of the President is still present in the Constitution we have today. In 1969, there was an amendment to individual rights which gave the government powers to nationalize private companies. Then came the famous 1973 Constitution which made Zambia into a one-party state. History teaches us that this decision wasn’t made because of the people’s will but rather it was put in place to secure the ruling party’s hold on power and to silence political opponents. The 1973 Constitution came into force upholding some of the recommendations of the Chona Commission while rejecting others. This commission recommended that the creation of a prime minister, who would be the official leader of government business in parliament and also shared some of the executive powers of the president. Not surprisingly, the government of the day accepted the idea of a prime minister but quite blatantly refused to share some of the executive powers.

Not everything in this Constitution was bad, however. One thing I liked about it was its imposition of the Leadership Code and the office of the Investigator General. These two provisions helped to curb corruption and theft by people in public office. In fact, do you know that when President Kenneth Kaunda left his office, he only had $8,000? This is an incredible achievement given the fact that he was the leader of hundreds of nationalized companies. Politicians of today, not only in Zambia but Africa as well, could do well to learn from this great man. Anyway, I digress.

After the 1973 Constitution, there came the Constitution of 1991 which was amended in 1996. In my opinion, I think that the Constitution as amended in 1996 could have resolved the many constitutional issues of today had the government of the day took the recommendations of the Mwanakatwe commission. This commission was arguably the most extensive of all the commissions that came before it. For example, it was the first to propose the institutionalization of the Constitutional Court. A recommendation that was rejected by the ruling government. It was also clear from the recommendations that the people of Zambia preferred a Constitution to be adopted through a Constituent Assembly. But in contradiction to this proposal, the government of the day adopted the Constitution as amended in 1996 through Parliament. The Achilles’ Heel of the commission, however, was its partisan motivation of restricting the qualifications of Office of the President. It required that both the person and the parents who wished to run for president to be Zambian. This move was clearly politically motivated to bar the former president, Kenneth Kaunda, from returning to politics because his parents were Malawians. Twenty years later after the 1996 constitutional amendment, the constitution was amended yet again. The constitutional amendment of 2016 has received its fair share of criticisms over the years with some claiming that it increased the powers of the president. It’s a common trend in Zambian politics that a constitution can never be amended without some form of political gain to the ruling government and Constitutional (Amendment) Bill no.10 is no different.

What we need to understand is that political gain is only temporary but the effects of constitutional reform can last for several years. Moreover, the history of the constitution cannot be relegated to the sands of time. The lessons are there for us to learn and to learn hard. What most politicians don’t understand is that a constitution is truly a document that transcends time; It will affect our children and their offspring long after we have passed on. In a debate with Judge Steven A. Douglas, Abraham Lincoln once said

“It makes little difference, very little difference, whether Judge Douglas or myself is elected to the United States Senate; but the great issue which we have submitted to you to-day is far above and beyond any personal interests or the political fortunes of any man. And that issue will live, and breathe, and burn when the poor, feeble, stammering tongues of Judge Douglas and myself are silent in the grave.”

Abraham Lincoln- 16th President of the U.S

The constitution will live on for as long as the Republic of Zambia is still on the face of the earth. Meaning that one day, you and I will become subjects of history. The question then that we must ask ourselves is what will our grandchildren say about the Constitution? Will they applaud it as a document that understands their needs or maybe they will come to think of it as a relic of the days gone by. None of us is immortal nor can we secure tomorrow. Who knows what tragedies tomorrow may bring?

The National Dialogue Forum

For onlookers, the legal jargon that is thrown around the Bill. 10 discussions can be imagined to be nothing short of chaotic. Famous Lawyers like Honourable Tutwa Ngulube go on and on about what seems to the general public as a foreign language that no one understands. Don’t worry, this post is here to help. One of the words that gets thrown around and which most people don’t understand is the National Dialogue Forum. To put it in simple terms, the National Dialogue Forum was a forum. Encarta Dictionaries defines a forum as a meeting to discuss matters of general interest. In this scenario, the matters that were under discussion were to amend the Constitution. On 12th June 2018, secretary generals of political parties, chiefs, and other important people were called to the discussion to adopt what they called the Siavonga resolutions. Why the funny name you might ask? Well, its because all of them met in Siavonga and were tasked to come up with ‘resolutions’ to amend the Constitution. A resolution is simply a formal expression of consensus or agreement at a meeting which is arrived at after discussion.  After they had agreed on what they wanted to be in the Constitution, this was later tagged as the Siavonga resolutions. In 2019, Parliament passed an Act to facilitate the implementation of those resolutions called the National Dialogue Act. According to section 4 (1) (a) of this Act, one of its functions was to alter the Constitution based on the Siavonga resolutions. According to Schedule of the Act, there were a total number of 101 institutions and individuals who made their submissions. What is surprising, however, is that one of Bill. 10’s bitterest critics like the United Party for National Development (UPND) and the Law Association of Zambia (LAZ) also filed their submissions in Siavonga. If you read the schedule of the National Dialogue Act, there are clearly listed there. This can mean a lot of things. It could dispel that what came out of the National Dialogue Forum is not what most of those guys wanted. Moreover, if you are going to ask my opinion about this, I would say that how can 101 institutions and individuals represent an entire nation’s say on such a prestigious document as the Constitution? It doesn’t make any sense. Even if this approach was taken seriously, we could still argue that it wasn’t inclusive enough because the average Zambian didn’t even know that there was a dialogue forum in Siavonga. People who support Bill No.10 always say that they made ‘clarion’ calls for people to participate but to be honest, that’s not true. Come to think of it, the sensitization of the public about the referendum in 2016, petty as it was, clearly was more effective than the National Dialogue Forum. I personally came to know of the National Dialogue Forum in an assignment at Law school. Now imagine what a Zambian in Vubwi who can’t read nor write must feel.

Now, I should mention right here that not everything in Constitutional (Amendment) Bill No.10 is bad. There are actually some parts to it that are beneficial. For example, the extension of the time for hearing an election petition in the Constitutional court and some other politically neutral provisions. After all, even the devil has some good old friends in heaven, right?  However, pound for pound and tooth for tooth, this Bill will only make things worse.

Now, let us consider, in more detail the impacts of the Bill on the Legislature, Executive and the Judiciary.

IMPACTS OF THE BILL ON THE THREE BRANCHES OF GOVERNMENT

The impact of the Constitutional (Amendment) Bill No.10 on the Legislature can be described as radical for lack of a better term. If the Bill goes through, the Legislature will invariably lose most of its functions to subsidiary legislation. This type of legislation also includes Statutory Instruments, which could be easily put into force by a Minister. Now, I may not be an expert but I don’t think that’s a good idea. I don’t think we have developed the level of trust high enough to the point that we could trust our leaders to do the right thing with that kind of power. Like I said previously, not everything in Constitutional (Amendment) Bill No.10 is bad. In a debate at the Intercontinental Hotel dated 17th February 2020, Honourable Makebi Zulu had postulated something that I think makes sense. He said that Article 9 of the Bill seeks to amend Article 47 of the current Constitution by replacing a First-Past-the-Post electoral system with a Mixed Member electoral system. What does that mean you might ask? According to Honourable Makebi Zulu, it means that people who ordinarily find it difficult to get representation in Parliament like women would find it easier to secure a seat in Parliament under this kind of electoral system. I believe that’s a good thing…However, I think it would be unwise to just look at this one good thing and base your decision on it. The dark side of the Bill far outweighs the good side. For example, Article 114 of the current Constitution gives the power to Parliament to approve loans and guarantees on loans contracted by State institutions or other institutions (Cabinet included). Article 36 of Bill No.10 removes Parliament’s powers to ratify loans and debt completely. Meaning Cabinet can contract loans indefinitely without any prior approval from Parliament. That’s tremendous power for Cabinet to handle. In the debate I mentioned earlier, Honourable Makebi Zulu pointed out that this particular provision is subject to Article 207 of the current Constitution which has not been touched by Bill. 10. He said that Parliament would still be approving these loans because there’s an Act of Parliament that specifically deals with the accruing of loans by the State called the Loans and Guarantees Act. Now, going back to our dive into history, we all saw that it is easier to repeal and amend an Act of Parliament than the Constitution. All it requires is a simple majority vote. So, again, the ruling party can simply amend that Act of Parliament to suit their interests. Now, coming to the Judiciary, Bill No. 10 seeks to put the Chief Justice in the Constitutional Court. This decision I think would create another problem. What will the powers of the President of the Constitutional Court be in that circumstance? It will mean that he would be subservient to the Chief Justice but then again, how is he going to effectively carry out his tasks? However, like I mentioned earlier, Bill. 10’s approach in extending the days of an election petition is a good thing. But like I have mentioned several times in this post, the bad far outweighs the good. We can’t simply overlook the immense power that will be invested in the Executive. Even if we could argue that the current President would do the right thing and not abuse power, who is to say the next President might be so considerate? Historically speaking, we have failed in this arena and I believe that we would be repeating the same mistakes our forbearers made. The very fact that a President’s power to create or divide a province is enhanced in Bill. 10 is a non-starter.  Article 149 of the current Constitution provides that those powers need to be approved by the National Assembly. However, Bill No.10 says that the power to divide provinces will be as prescribed. Indicating that this matter would fall to subsidiary legislation or an Act of Parliament.

Final thoughts

So, in conclusion, Constitutional (Amendment) Bill No.10 has some good qualities and also some detrimental qualities too. If you were to weigh the good and the bad on a scale, the bad far outweighs the good. This reminds me of the Ancient Egyptians and their mythology. They believed that if a person dies, his heart would be measured on a scale. On one side of the scale would be a feather and on the other, would be the dead person’s heart. If the heart is generally evil, it will outweigh the feather and the Egyptian gods would condemn the person to hell. If the heart is generally good, it will not outweigh the feather and the dead person will be sent to paradise. In the same light, Bill No. 10 is generally not a good law. It has potential to cause tension in our country. The best that we can do is not to completely withdraw the Bill but lobby for the repeal of those specific provisions which are problematic and leave the good ones. This all bolts down to our able-bodied Members of Parliament. If they could just work together for once, it could turn out to be a progressive bill. But judging by our history, working together in Parliament has never really been our forte, and therefore its best to just withdraw the Bill completely. Looking to the future, there’s no doubt that we will continue to look for a people-driven Constitution and I am supremely confident that Constitutional(Amendment) Bill No.10 doesn’t come close to achieving that goal.

CHISHIMBA KAMBWILI V THE ATTORNEY GENERAL; LESSONS ON SEPARATION OF POWERS

High Court of Zambia Lusaka

The Constitutional Law case of Chishimba Kambwili v The Attorney General 2019/CCZ/009 is interesting. The brief facts of the case were that on the 21st of February, 2019, a point of order was raised by Malambo Member of Parliament, Hon. Makebi Zulu as to whether or not it was in order for Dr.Chishimba Kambwili to retain his seat even though he had admitted being a leader of a political party other than the one that sponsored his candidature. Pursuant to this, on 27th February 2019, the Speaker of the National Assembly of Zambia declared the Roan Constituency Parliamentary Seat vacant.

Dr. Chishimba Kambwili

Now, the Constitution of Zambia clearly provides for the circumstances in which a seat held by a Member of Parliament can become vacant. Although the Article covers for Independent Members of Parliament who decide to change to a different Political Party in terms of clause 2(g), it doesn’t cater for people who are still members of one political party but are affiliated with another one. According to Dr. Kambwili, the manner in which he was deposed from the Party that sponsored his candidature for Roan Constituency, was against the procedure stipulated in its constitution. Therefore, in his perception, he was still affiliated with the party owing to that technicality.

After hearing the pronouncement by the Speaker, Dr. Kambwili filed a proceeding in both the High Court and Court of Appeal.

Now, this is where it gets interesting…

I found the legal word ‘sub judice’ to be extremely annoying so I looked it up.

Sub Judice -“  A rule limiting comment and disclosure relating to Judicial Proceedings, in order not to prejudge the issue or influence the Jury.”

– Oxford Dictionary of Law, 5th Ediion

According to this definition, when a matter is still in deliberation in a court of law, public discussion of it, is prohibited elsewhere (but of course it has its exceptions). This was one of the main issues brought before the Constitutional Court.

Constitutional Court of Zambia

The other issue was whether the Speaker was in line with his legislative role by stating that there was a lacuna in Article 72 and consequently applying a remedy.

Honorable Speaker of the National Assembly, Dr. Matibini

Grade 4 Social Studies tells us that the interpretation of Laws is the function of the Judiciary. So, in this case, Dr. Kambwili’s Counsel, made submissions that the Speaker was not in line with his legislative role.

However, the Solicitor General, on the other hand held the opposite view. He brought a defense in the form of ‘exclusive cognizance’. In Zambia, this doctrine is provided for in section 34 of the National Assembly (Powers and Privileges) Act. The section reads:

  “Neither the Assembly, the Speaker nor any officer shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Assembly, the Speaker or such officer by or under the Constitution, the Standing Orders and this Act.”

Section 34 of the National Assembly (Powers and Privileges) Act, Cap 12 of the Laws of Zambia

What that means is that Parliamentary proceedings cannot be subjected to any Court of Law in the country; If it were so, then it could be said that one arm of Government is interfering with the Constitutional role of the other.

Coincidentally, I found that Dr. Patrick Matibini (the Speaker) had talked about the same issue in a paper that was presented to the 23rd conference of speakers and presiding officers of the Commonwealth, in Malaysia.

He said,

“This freedom for Houses to regulate their own affairs is known as ‘exclusive cognizance’. Thus the learned authors of Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, Twenty Fourth Edition (London, Lexis Nexis, 2011), state (at page 227), that by “exclusive cognizance” is meant the right of Houses to be the sole judges of lawfulness of their own procedures and to settle or depart from their own codes of procedure.”

I love how the Constitutional Court resolved this issue. They were of the view that, in accordance with the doctrine of separation of powers, no arm of government should take on the role of the other. Therefore, checks and balances, should be used with great care and prudence. What that means is that Exclusive Cognizance should not mean that the Constitutional Court cannot hear matters that arise from interpreting the Constitution in the Legislature. The Legislature, also in turn, should not attempt to interpret statutes, including the Constitution, because that is the role of the Judiciary. Therefore, from this understanding, we could see that the Speaker took on the role of the Judiciary when he said there was a lacuna in the Constitution and then attempted to ‘fix’ it.

As of the matter that the Speaker fell short of the Sub Judice rule and that the Constitutional Court should declare his pronouncement in Parliament null and void, the Court stayed within its Jurisdiction. They cited that the aspect of the matter would be better decided in the High Court, as it would be usurping the power of that Court if they had adjudicated on it.

All in all, it was an interesting case, which I recommend any Vigilante Scholar to read.

THE DOUBLE WIN BY DENIS WAITLEY Part 2: Lessons on leadership and Self-development

Thanos…the Bad Guy in the movie Avengers: Infinity War

The Marvel Villain, Thanos, in the movie Avengers: Infinity War, is an interesting personality. He seems to believe that life in the universe needs some form of correction. He was quoted saying, “The Universe is finite, its resources finite, if life is left unchecked, then it will cease to exist…”

So, what was his solution? Wipe out half of all life. He said, “When we faced extinction, I offered a solution…(genocide) random, dispassionate, fair between rich and poor alike and they called me a mad man. But what I predicted came to pass…”

Now, at this point, I bet you are probably thinking that I am a geek or something but I want you to capture the main point; Thanos was a strict adherent of what Denis Waitley calls the Win- Lose philosophy. He seems to believe that there is not much room in the Universe for all of us. That the resources out there are scarce and therefore, only a few gifted people deserve the prestige that life can afford. Pretty crazy right?

Surprisingly, that’s how most of us are raised. We are brutally made alive to the fact that in this world of ‘my way is the right way’, there are a few Jobs out there for the many of us. Hence, the misconception of competition, which I mentioned in my previous post, is triggered.

Viola!! Competitive Animal Kingdom

From a purely economic point of view, I think there’s some merit to the Win-Lose philosophy. After all, not all of us can afford some, if not all, of the luxuries of life.

But I beg to differ.

Human Beings, like no other creatures, are endowed with in-born abilities to lead. Yes, that does mean every one of us.

The difficulty lies in our inability to see the ‘Natural Resources’ that are in every person.

Denis Waitley put it like this, ‘Losers see a problem in every solution, Winners seek a solution in every problem, while Double Winners help others solve their problem.’

 Leaders are the only people on the planet that can see solutions in other people. They don’t have to necessarily bring out the solution but they act as catalysts in facilitating its existence in the real world.

There comes a time in every person’s life when they have to choose between their ego and solving a problem. Leaders always choose the latter over the former.  You would be surprised how rare that kind of decision-making is!

“I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors, and I shall adopt new views so fast as they shall appear to be true views.”

Abraham Lincoln- 16th President of The U.S.

Now, right there above, is a true leader talking.

Most of the time, especially in the political arena, self-proclaimed leaders would rather please their own egos at the expense of a solution. Even at National level, some politicians would rather see hundreds upon hundreds of people perish than use an opposition party’s solution to a problem. True leadership is intolerant to such ideals.

In my next blog, I will tackle my final analysis of the Double-win and hopefully will inspire a few readers to impact those closest to them. I believe that the principles depicted in this book are indispensable to self development. It’s only in the application of these virtues can one truly lead.