Maravi

Rupiah must be freed from Kunda’s spell – Miyanda

Rupiah must be freed from Kunda’s spell – Miyanda
By George Chellah
Thu 31 Dec. 2009, 04:00 CAT

Brig Gen Miyanda and wife Angela singing during the 18th anniversary celebrations of the declaration of Zambia as a Christian nation at the Cathedral of the Holy Cross in Lusaka on Tuesday - Picture by Thomas Nsama

HERITAGE Party leader Brigadier General Godfrey Miyanda has observed that President Rupiah Banda must be freed from Vice-President George Kunda's spell, and awaken to the fact that he does not have to accept misleading or questionable legal advice or opinion.

And Brig Gen Miyanda wondered why Vice-President Kunda has not effected the charge of treason he declared on Post editor Fred M'membe because under the laws, the accused person must be arrested and detained without bail.

Commenting on Vice-President Kunda's accusation that M'membe was trying to take over state power by scheming to control the office of the Director of Public Prosecutions (DPP) and other constitutional offices, Brig Gen Miyanda criticised Vice-President Kunda's statement.

“The public accusation of treason against one Fred M'membe, a Zambian citizen, by the Minister of Justice Mr George Kunda is an outrageous and unkind Christmas gift to Zambians. It is badly timed and must be condemned by all right-thinking and fair-minded Zambians. More disturbing is that the Republican President is reported to have accepted and commended his Justice Minister's 'timely advice',” Brig Gen Miyanda said.

“But what Minister of Justice George Kunda declared is not advice but a charge of treason, which he has not effected for reasons best known to himself. Under our laws, a person so accused must be arrested and detained without bail. This is the current law.

It would be a laughing matter had it not been that under the same law treason carries a mandatory death sentence. For this reason I urge the President not only to distance himself from Minister Kunda's pronouncement which carries no force of law, but also to begin questioning such advice by his Minister of Justice, a lawyer who ought to know better. The Minister of Justice must stop mixing up cadre and partisan politics with legal opinion, which must never be given in an atmosphere of emotion, bias or prejudice.”

Brig Gen Miyanda stated that it seemed Vice-President Kunda had taken advantage of his two portfolios of Vice-President and justice minister and was actually acting as the DPP as well as Attorney General in name and in fact.

“This is undesirable; his juniors at the ministry can never go against his legal opinion when he is not only their minister but is also the Republican Vice-President. The President is entitled to quality legal advice from the

Attorney General who is his chief legal advisor and not be misled by political rhetoric that sounds like legal opinion. But the President will not get this quality advice because he regards his Vice-President and Minister of Justice as the super Attorney General and finds it convenient to refer to him,” Brig Gen Miyanda stated.

“On the M'membe issue, I suggest that the President consults lawyers other than Hon Kunda and see if they agree that Mr M'membe should be walking the streets as a free man if indeed he has committed treason. It is a requirement of the law for those accused of treason to be arrested and kept under lock and key until the case is disposed of by the courts.

It is contrary to current law to advertise offences and offenders instead of charging them. If Fred Mmembe has ambition to become President of Zambia, this cannot be treason.

“All this ended when the One Party State was expunged from our Constitution. In those days it was an offence to call oneself President of the Young Farmers' Club or President of Heritage Party!

The word 'President' was the preserve of the President of the Ruling Party. We cannot and must not go back to those days. And the one to ensure that this does not happen is the President because his ministers and the Vice-President are mere advisers.”

Brig Gen Miyanda stated that Vice-President Kunda was not serious about M'membe's alleged treason.

“If he were serious he would have complied with the Penal Code and Criminal Procedure Code and prefer charges instead of defaming him. Yes, that is what Minister of Justice Kunda has done. An ordinary citizen would have been charged under the Penal Code with publishing false news with intent to cause fear and alarm to the public.

Hon Kunda's allegation is despicable first because he is a lawyer, a State Counsel who knows or ought to know how to handle indictments; he has not applied the law probably because he knows that he has nothing against M'membe other than hatred, prejudice and fear and merely wish to get public sympathy,” Brig Gen Miyanda stated.

“Second, Minister Kunda knows that under our laws there is no treason without an overt act; a mere statement to desire the change of a government is not treason. If this were so then all political parties that advocate for change of government would be arrested on a daily basis; perhaps Hon Kunda wishes our country to revert to the One Party State - he must say so. Our Constitution has made it constitutional and legal to change any government because it has provided for the election of citizens to various positions in government, including that of President.

“Third, Minister Kunda must remember that by ushering in Independence we were saying that we wanted to depart from the colonial political arrangement of having a monarch as the ruler over our nation, whose ascendancy to political power is hereditary; hence the adoption of elections as the means to political office and power. Election connotes choice; and choice requires that opponents as well as their supporters or other interest groups promote what they stand for. It is such promotion and agitation that Minister of Justice Kunda is labelling treason. Although he has not said so, he is relying on some archaic provisions of the current Penal Code.”

Brig Gen Miyanda further said in this regard some provisions of the Penal Code must be smitten down because they were violently inconsistent with the Constitution and were offensive to the independence and democratic spirit and the rationale for seeking the regime change of the former colonial government.

He said the Law Association of Zambia (LAZ) must lead the debate and battle for expunging such provisions from the statute books instead of remaining quiet when their voice was most needed.

“When a Government leader makes a serious allegation such as the one by the Minister of Justice, he or she must be condemned promptly by LAZ; and as a rule we must routinely demand and insist that such a leader be compelled to come on the air, live, and debate with a select panel of knowledgeable citizens to defend what he or she had announced,” Brig Gen Miyanda stated.

“Hon Kunda is not an ordinary citizen; nay, he is not even an ordinary politician. He is a lawyer, a State Counsel. Unlike the President, he has the benefit of legal training and must therefore desist from making utterances that should really be made by an uninformed party cadre, unless he is deliberately taking advantage of the President.”

Brig Gen Miyanda stated that the President must be freed from Vice-President Kunda's spell, and awaken to the fact that he did not have to accept misleading or questionable legal advice or opinion.

“…Unfortunately, the Minister of Justice Kunda wants to get medals for bashing cantankerous citizens and the President seems impressed with such advice. I urge the President to remember his Oath of Office.

The burden to keep his oath and defend the Constitution is not on the Ministers or the Vice-President but on the President himself,” Brig Gen Miyanda stated. “Once he accepts a Minister's or Vice-President's advice that becomes his position and he, and he alone has to answer for any constitutional breaches that follow that advice.

The President must rein in his Minister of Justice and instead advise him to be slow to accuse citizens of treason for voicing views that may be unpalatable. Treason's surname is 'Death' which must not be something to joke about casually by a so-called Minister of Justice. We are in a democracy. If he has his facts correct he must give them to the DPP and leave it to him to act instead of politicking and advertising the commission of a crime.”

Brig Gen Miyanda stated that the system of holding elections meant that opponents would canvass for themselves and against their opponents, including those in government.

“The end of the One Party State changed all pretensions of the 'One Party and One Leader Forever' syndrome. The Constitution officially has sanctioned the changing of any regime through the ballot.

The idea is to afford people a chance to choose what or who they want; inevitably this means that those in office will be canvassed against for removal and those in government will be canvassing against those outside to prevent them from coming in,” he said. “Campaigning takes place all the time, not just at election time.

Of course after an election, the losing parties must give the winner a chance to govern; but this does not mean that they should not criticise the winner. There is no law against campaigning whenever one wants to. When we say politicians must stop harassing the government, this is merely on moral grounds and on a culture of decent politics but is not a legal requirement.

Even in the United States political parties are always at each others' throats; that is why it has taken Obama a long time to push through his Health Reforms because the Republicans have been contesting on partisan lines. This scenario calls for leadership, wisdom and persuasion of those with different views but not branding them as treason felons.”

Brig Gen Miyanda stated that if M'membe has committed treason, let the DPP act without fanfare in the press or pressure from any quarter.

“Last but not least, I urge the President to condemn and withdraw the political pronouncement against Mr Mmembe by the Minister of Justice, who should be the last person to make such attacks on citizens. I urge the Minister of Justice either to charge Fred Mmembe and let the courts decide or else withdraw the accusation; he must remember my timely advice about the Chansa Kabwela case.

We are all Zambians; we cannot go on forever fearing to say anything just because of one Minister of Justice who knows no justice. We cannot run the justice system based on hatred of individuals, the fear of the unknown or merely the desire to keep our jobs,” stated Brig Gen Miyanda.

Labels: FRED M'MEMBE, GEORGE KUNDA, GODFREY MIYANDA, MEDIA, RUPIAH BANDA

posted by MrK @ 7:23 AM