By The Post
Tue 09 Aug. 2011, 14:03 CAT
WE agree with Rupiah Banda that there is nothing wrong about being a Malawian or a Zimbabwean and that “we are actually all Africans”. But we still have countries or nations with defined borders and citizenry. Our dream of Africa becoming one country with all its inhabitants becoming citizens of one nation carrying the same passport seems to still be very far away from being realised.
The reality of our existence is that we have 54 countries in Africa. And each country has got its own territory, citizens and laws. A Zambian citizen cannot today go to Zimbabwe and try to become a councillor in Gweru, a member of parliament in Bulawayo or a presidential candidate in that country’s elections.
There are laws that govern and limit who can be a candidate in any election in Zambia. This is the same for other continents and countries. Even in European countries that have achieved a very high level of integration, there are still laws that limit their political participation.
For instance, a French national cannot go to Germany, England or Spain and try to be a legislator, prime minister or president. There are legal or constitutional qualifications which one should meet to be eligible to contest elections at any level.
Even in the United States, not every person carrying an American passport or citizenship qualifies to stand for president – one has to have been born there to qualify to contest the office of president.
The question here is not about Rupiah’s Zambian citizenship. Of course, this could also be an issue since he was not born here and his parents are also said not to have been born here. But the issue is about the requirements of the Constitution of Zambia in terms of who qualifies to be a candidate for election as president.
Article 34(3) of the Constitution of Zambia states very clearly, among other things, that “a person shall be qualified to be a candidate for election if (a) he is a Zambian citizen; (b) both his parents are Zambians by birth or descent”. This is the law as it stands today.
And this law was enacted in 1996 by the MMD government of Frederick Chiluba. Some of the people representing Rupiah today were in the forefront of enacting this law. We all know that this law was targeted against Dr Kenneth Kaunda, whose father and mother originated from Malawi and were as such not Zambians by birth or descent.
We opposed this law. We fought very hard to stop Chiluba doing what he was doing. But we lost. Other citizens like Simon Zukas and Dipak Patel resigned their positions in Chiluba’s government as a result of their opposition to this law and what it represented.
We are not today discussing whether this is the most inspired piece of legislation there is in our country. It is not our place at this stage to discuss whether this is good or bad law. Whether we like it or not, it remains a fact that this is the law today in Zambia. Whether Rupiah likes it or not, it affects him.
But in relation to Rupiah, what is more critical for us is not even about this law. It is Rupiah’s conduct when he filed his nomination for president in 2008.
It is a requirement in our law that those who file such nominations should do so by sworn statutory declaration in the form of an affidavit. When one swears an affidavit, they do so attesting to the truth of what they state in such a document.
Knowingly making an affidavit which contains lies amounts to the criminal offence of perjury. Rupiah swore that his father and mother were born in Zambia. If, as his opponents are now saying, his parents were in fact born in Malawi, he lied under oath. That in itself disqualifies him from continuing to hold the office of president and he must step down immediately and face criminal prosecution.
Clearly, from what Rupiah is saying today, he does not seem to be denying that he is of Malawian ancestry. If that is the case, why did he lie? We can only speculate that but it seems that he was concerned about the provisions of the Constitution.
He knew that if he told the truth, he would probably be disqualified, hence claiming that both his parents were born in Zambia. His political party, the MMD, is today reaping the consequences of dribbling our people. In 1996 when they came up with this Constitution, their goal was to stop Dr Kaunda. But now they are caught in that unenviable position of being hit by the unintended consequences of one’s actions.
What a web they have weaved for themselves by trying to dribble Dr Kaunda! What a boomerang!
There is a very important lesson that needs to be internalised from this series of interesting events. In simple terms, one can say that it is never advisable to unfairly write laws meant to target specific individuals.
This is because by their nature, laws tend to have many unintended consequences. This is why the only laws that should be written are those that are intended to benefit common good and society in general. Those who have power to write laws should use that power to develop society and not to polarise it.
The MMD’s attempt to have total hegemony over important laws of our country explains the failure of the last constitution-making effort.
Rather than striving to write a constitution that would have served all our people, they wanted the constitution designed to serve the interests of the MMD and the egos of specific individuals like George Kunda.
We have not forgotten that George’s National Constitution Conference was driven to adopt what came to be known as a degree clause designed to bar Michael Sata.
In circumstances that have never been explained, the MMD backed out of this particular clause after it had been overwhelmingly adopted by the NCC.
Could it be that the MMD had its own degree problems? Or could it be that they discovered rather late that Sata had a degree? Whatever the case, that incident and others during the NCC clearly demonstrate that the MMD has not learnt any lessons from its disastrous attempts to use the writing of legislation to serve narrow sectional interests.
Another unhappy example of the MMD’s abuse of power was the theft of motor vehicle bail conditions which Chiluba changed to fix one individual – Archie Marlie Mctriboy.
For those that may have forgotten this sordid affair, it bears repeating. Archie was accused of having an inappropriate relationship with Chiluba’s then wife, Vera.
To fix him, Archie was thrown in jail for all sorts of charges. When it was proving difficult to keep him in jail, the law on theft of motor vehicles was changed to make the offence unbailable.
Archie was then kept in jail until Chiluba left office. The interesting thing from this law was that many of those who might have participated in the enactment of this unfair law were later to be caught by it when they were prosecuted for corruption and theft of government motor vehicles during Levy Mwanawasa’s tenure. This bad law remained law until Levy decided to repeal it.
This is the unfortunate reality with Rupiah’s crisis. The bad law contained in our Constitution remains law until it is repealed. Unfortunately for Rupiah, nothing can be done about his perjury.
They can manipulate all sorts of things today to protect Rupiah but they will not be in power forever. One day, all the things they have done will be known to the public.
And again, prosecutions for other forms of perjury will start for all those involved. We are not accusing anybody of anything. We are simply taking a deep look into the future and giving appropriate advice.
Let the truth prevail. These are things one can never successfully change, conceal or manipulate.