Bank of Zambia seeks autonomy
By Ndinawe Simpelwe in Solwezi
Tue 28 June 2011, 09:10 CAT
THE Bank of Zambia has submitted a proposal to the government to make the institution independent from the executive. Bank of Zambia (BoZ) secretary Mathew Chisunka said the proposed Act would have the responsibility of all monetary policy.
Chisunka said independence of the central bank would ensure maintenance of a sound banking system and efficient payment system in the country.
“The Act will make the Bank of Zambia conform to the standards of central banks in the SADC region as most of them are independent,” said Chisunka during a seminar organised for journalists by the central bank recently.
He said some salient elements of the proposed BoZ Act would include provisions relating to adequate power and independence.
“We hope to see the central bank have adequate mechanisms for good governance, accountability to government, Parliament and the public,” he said.
He said the proposed Act included the security of tenure for the governor and the two deputies.
Chisunka said BoZ had proposed that the appointment of the bank's governor be approved by Parliament.
“We want a situation where appointment of the BoZ governor will not rest in the powers of the President alone. We want the President to propose a name that has to be approved by Parliament,” Chisunka said.
He said it would be important to have the Act in place as it would have clear functions and powers with clear limitations.
Chisunka also said the proposed Act would help the country prepare for the proposed central bank for the region.
He said SADC was supposed to have one central bank by the year 2018 and Zambia needed to prepare for it.
He said the independence of the central bank would improve the governance of the institution.
He said good governance of the central bank was important because there were a number of scandals related to poor governance and corporate failures.
He said at the heart of scandals and corporate failures were effectiveness of the boards, directors' remuneration, financial reporting, risk assessment and management processes.
Chisunka said others included accountability of accountants, white collar crime and effectiveness of audits.
Labels: BANK OF ZAMBIA, SEPARATION OF POWERS
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Rise up and defend parastatals from MMD abuse - Shamenda
By Moses Kuwema
Thu 09 June 2011, 04:01 CAT
ZAMBIANS should rise up and defend parastatal institutions from being abused by the MMD government, says Fackson Shamenda.
Commenting on the raging debate on President Rupiah Banda’s announcement recently that Zesco Limited would install solar geysers free of charge to all interested customers, Shamenda said good governance was not only about holding free and fair elections but it also touched on the abuse of state institutions.
“This is very unfortunate; that is why institutions such as the IMF International Monetary Fund and the World Bank have been calling for the privatisation of parastatal institutions because they are scared of this same type of abuse through political interference.
That is why these days, there is no sense of ownership from the public on these parastatal institutions because they have been turned into MMD institutions,” said Shamenda, who is former Zambia Congress of Trade Unions (ZCTU) president.
He said economic abuse which was currently happening at Zesco was dangerous as it resulted in the suffering of people, something he said should be condemned in the strongest terms.
Shamenda said the current abuse of parastatal institutions should be used as a campaign issue this year.
“Those who are aspiring for the higher positions should promise that there will be no abuse of public institutions. This is the worst ever abuse of parastatal institutions we have seen in this country.
I used to sit on some of the boards of these parastatal institutions in 1991 but this abuse was not there, this time around it’s a disaster,” he said.
He said it was embarrassing for professionals at Zesco to be defending what was indefensible adding that this was as a result of them lacking ‘spines’.
On Tuesday, assistant parish priest for Kitwe’s Sacred Heart Catholic Church, Father Anthony Salangeta called on Zesco to stop borrowing money from financial institutions on the pretext of increasing productivity since it had excess money to finance MMD operations.
Fr Salangeta called for an end to the abuse of public institutions that benefit a few individuals in President Banda's government.
“This is what we mean when we say there must be fairness in the way resources are distributed in this country, in the way the law is applied in the country, in the way ZNBC, Zambia Daily Mail and Times of Zambia are being used in this country. This is hypocrisy of the worst kind.
Time and again we hear Zesco borrowing so much from the World Bank to renovate this and that, to increase production, to enhance operations and they say the company has no money of their own to do those things but suddenly they have money to do campaign projects for the MMD in an election year. This is unacceptable from a public institution which is financed by the public with divergent political views and inclinations,” said Fr Salangeta.
Labels: FACKSON SHAMENDA, MMD, PARASTATALS, RUPIAH BANDA, SEPARATION OF POWERS
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AVAP describes abuse of public media as shameful
By Brina Manenga
Tue 31 May 2011, 03:40 CAT
THE abuse of the public media is a shame to the Zambian people, says AVAP.
Bonnie Tembo, the Anti-Voter Apathy Project (AVAP) executive director, said it was unfortunate that the public media was being used as a campaign tool for the MMD when it was meant for all Zambians of different political affiliation.
“It is a shame the way the public media is being used by the MMD. The people of Zambia are even made to pay K3,000 per month, for what?
That is why people have now shunned watching ZNBC because it is all government propaganda,” said Tembo during a discussion on Mobi TV’s Open Forum on Sunday night.
He said Zambia National Broadcasting Corporation (ZNBC) had not adhered to its promise of giving equal coverage to all political parties.
“Zambians have an ownership of the public media because they are taxpayers to these institutions. ZNBC promised that it will accord equal airtime to all political parties but we have not seen that happening. What we see are documentaries of the MMD,” Tembo said.
“We cannot say anything about the private media because we do not know your editorial policies. We do not pay anything to you people.
However, the public media is owned by Zambians, they have an ownership. What the public media is doing is wasting your money and my money.”
On the election date, Tembo said President Rupiah Banda’s delay in announcing the election date would negatively affect the opposition political parties’ preparations for the exercise.
“The people of the Democratic Republic of Congo (DRC) even know that they will have elections on the 28th of November 2011. Unfortunately for us the date is in the briefcase. The President says he will announce the election date when he is ready. It does not work like that.
If people are told the election date early it makes people ready because they know when they are going to the polls,” said Tembo.
Labels: AVAP, MEDIA, SEPARATION OF POWERS
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It’s illegal to use public funds for campaigns - Chitala
By Chibaula Silwamba
Sat 28 May 2011, 04:01 CAT
RUPIAH Banda and the MMD’s use of public resources and chiefs to campaign for their re-election will not work, says Mbita Chitala. Commenting on ministers’ 21-day countrywide campaign trail under the pretext that they are touring government projects, Chitala, a former deputy minister of finance and one-time ambassador to Libya, said use of public resources for political campaigns was illegal.
“Abuse of public resources is not only unlawful, it is also immoral and should be condemned by all democracy loving people,” Chitala said.
He said the Electoral Code of Conduct prohibited chiefs from taking partisan positions.
Chitala said use of public resources and chiefs’ involvement in partisan politics was punishable.
“The country has gone back to the authoritarian system of the one party state of UNIP,” Chitala said.
He said President Banda’s MMD had eroded all the gains from the reintroduction of multiparty democracy attained in 1991.
“Chiefs are traditional leaders for all of us, be it in opposition or ruling party, so they should show that leadership by being above politics. Chiefs are too senior to be intertwined in politics. They should be fair to all of us as their children,” Chitala said.
“It is not good for chiefs to be partisan. Chiefs that are partisan will not have respect from their subjects.”
The MMD has been parading chiefs on the state-run Zambia National Broadcasting Corporation (ZNBC) TV to endorse the re-election bid of President Banda.
Labels: CAMPAIGN FINANCE, CHIEFS, CORRUPTION, MBITA CHITALA, SEPARATION OF POWERS
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Independence of our judiciary and the rule of law
By The Post
Sun 22 May 2011, 04:00 CAT
“The non-observance of the Constitution can ruin the governance setup of a country as it is key to democracy, human rights and the rule of law…Government attaches importance to constitutionalism and fully believes in the notion that it is key to democracy, human rights and rule of law…Those in the political circles are not free to do anything they please in any manner they choose.
They are bound to observe both limitations on power and the procedures which are set out in the supreme, constitutional law of the country. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.
In short, our government is not at large to do as it pleases; but is limited by the supreme law of the land, the constitution…Lord Binham once pointed out the essential elements of the rule of law as being that the law must be accessible, intelligently clear and predictable…that ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
The law must afford adequate protection of fundamental human rights. We in government believe that an independent judiciary is fundamental to the rule of law, but that it needs to be enhanced by effective, transparent, ethical and accountable governance.
The many challenges of our various judiciaries are brought about by the interlocking state organs and their functions.” This is what George Kunda said in a speech read on his behalf by local government and housing minister Dr Brian Chituwo at the Southern African Chief Justices Forum’s second Judges Colloquium held in Livingstone.
“Challenges continue to plague and compromise the concept of judicial independence. The aim of this second colloquium is to provide a platform at which a critical review of the current state of judicial independence in the central, eastern and southern African regions as an essential element that can be used to foster democracy, human rights and the rule of law.” This was a remark by the Chief Justice of the Republic of Zambia, Ernest Sakala, at the same colloquium.
And International Commission of Jurists (ICJ) deputy secretary general Jan Borgen told the colloquium that ICJ’s vision was to have lawyers, judges and prosecutors enlightened, courageous and free to carry out their professional duties by regarding the rule of law as indispensable to safeguard and advance all human rights.
Borgen added: “Not surprisingly, judicial independence is associated with the ideas of democracy, social justice and the rule of law. Independence is not only desirable but necessary for the realization of a just society.”
These are wonderful speeches. Should we treat these as simply good political speeches? We know from experience that things like these in this country have not worked well in practice as they have done in speeches.
Our lesson is that we should never forget these good things they are talking about to survive, thrive and do well have to live in our hearts; when they die there, no constitution, no law, no court can save them.
After all, we know that the independence of the judiciary constitutes the main raison d’etre of any serious meeting of judges, lawyers and prosecutors. By virtue of this, it is always on the agenda. It is central to the administration of fair and equal justice in a democratic society.
As such, it attracts undue amount of lofty but empty rhetoric about the defence of democratic values and political principle, when what judges themselves desire, as do those subject to the laws, is a critical but helpful examination of the practical ways in which such independence may be guaranteed, or at least promoted, in the day to day administration of justice.
As we have stated before in this same column, the idea of independence of the judiciary as it now presents itself is a modern one. If we go back in history, we shall generally find that although the notion that justice should be fairly administered may well have been accepted, those who adjudicated or settled cases were not expected to be in any real sense “independent”.
Thus in medieval England, from whose common law we derive our own national legal system, justice was a royal prerogative, which the ruler carried out through his appointed officials or justices.
As such, not only was there no separation of powers, but those who judged were agents of those who ruled. The same observations apply to societies with customary legal systems and to theocratic societies such as those where Islam was the state religion, and judges had to conform to the dictates of the sacred law, as expressed in the Sharia and Sunna. We can today say that this is not different in our country.
Rupiah Banda and George get the judgments they want from our courts. In a word, justice in this country is a presidential prerogative, which Rupiah, with the assistance of George, carries out through his appointed officials or justices.
This is why today there is an admission that the independence of our judiciary needs critical review as it is an essential element that can be used to foster democracy, human rights and the rule of law.
If there was independence of the judiciary in this country, Frederick Chiluba would be in jail today – magistrate Jones Chinyama would have not acquitted him and Director of Public Prosecutions Chalwe Mchenga would have not withdrawn the appeal against that highly questionable acquittal.
If our judiciary was reasonably independent, the London High Court judgment against Chiluba would have been registered in this country and enforced against Chiluba. And that highly questionable High Court judgment that allowed Chiluba to keep his loot wouldn’t be there and Attorney General Abyudi Shonga would have appealed that highly questionable High Court decision.
As we have stated before, as long as judges are appointed, paid, promoted or dismissed by persons or bodies controlled directly or indirectly by the president or the executive, the judiciary’s independence in our country will continue to remain more theoretical than real.
And truly as we have seen over the last close to three years of Rupiah’s rule, independence of the judiciary is an essential pillar supporting the rule of law and without it, there will be no meaningful rule of law to talk about in this country. It is not enough to say that the courts shall follow and apply the law faithfully and equally to all.
One must in addition demand that there should be no dispensing power vested in the president or the executive or other body which would relieve a person from the duties and processes of the law. We have seen that there is hardly a more powerful weapon which can be abused in the hands of a corrupt or abusive government than that of initiating and discontinuing prosecutions.
We have seen how Rupiah is abusing the prosecution process to harass political opponents through unjustifiable prosecutions and by exempting his friends from liability for criminal acts. The Chiluba story tells one side of this very well. And the prosecutions of George Mpombo tell the other side of the story equally well.
And it is clear from all these experiences that the judiciary at whatever level may find itself confronting these abuses, and may find itself subjected to enormous pressures to accept them. Often, if the process is legal but unfair, there is little that a court can do, especially if that court lacks courage and freedom to carry its professional duties regarding the rule of law as indispensable to safeguard and advance all human rights.
And in our situation, this is compounded by human failure. It is not in dispute that some of our judicial officers are corrupt. It cannot be denied that some of our magistrates and judges are corrupt.
It can also not be denied that there is no honest Director of Public Prosecutions who could have done what Mchenga did, who could have abused that office in the way he has done. Abuse of office is corruption. In short, what we are saying is Mchenga is corrupt.
And no one can also deny the fact that many officers in our police service are corrupt. And the sum total of all this is a compromised and corrupted judicial process. What justice can one expect from such a process?
We know that it’s very difficult to deal with the corruption of magistrates and judges in this country because they highly protect themselves from any such attack or criticism with contempt proceedings. We saw how unfairly a senior lawyer, Nsuka Sambo, was dealt with, was sent to jail.
As long as this remains the situation, it will be very difficult to deal with corruption in our judicial process. The judiciary has not been spared the corruption that has permeated the executive and the legislature and all sectors of our society.
But while it is easy to talk about and expose the corruption in the executive arm of government, it is not so easy to do the same with that of the judiciary, and to some extent, that of the legislature.
We need to carry out serious reforms in our country. And reform of the judiciary is one of the most powerful anti-corruption measures. We have to meaningfully ensure the independence of our judiciary.
We also have to strengthen the nation’s capacity to deal with corrupt judges and magistrates and have them prosecuted. We have to increase transparency in the judiciary.
Over the last few years, it cannot be denied that our judiciary’s capacity to tackle corruption cases has been seriously called into question.
As for what George has said, it’s clearly a matter of political rhetoric. We say this because George has been in the forefront of trying to impose a constitution on the Zambian people tailored to suit his own desires. George has been in the forefront of undermining the independence of the judiciary.
Who doesn’t know how George has taken over the decision-making process at the office of the Director of Public Prosecutions by ensuring that a spineless and timid fellow of his choice is appointed to that office? Who doesn’t know how this government is appointing and promoting judges on the basis of patronage? George is behind all this.
And before George talks about exercising the powers conferred on ministers “in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”, George must explain how possible it was for him if he had acted in this way to spend over K200 billion on an arbitrary, ill-conceived constitution review process that was doomed to fail.
And before George starts talking about human rights, he should explain how his government failed to respect the human rights – the freedom of speech and expression, the freedom of assembly and the right to equal protection before the law – of all those people in Western Province who wanted to challenge the abrogation of the Barotse Agreement and were denied the right to hold rallies and express themselves, were shot at and killed without posing a threat to anyone’s life and in some way were denied fair trial.
We say this because you cannot say someone has got a fair trial when he is poor and he is taken more than 400 kilometres away from his hometown and has no means whatsoever to bring equally poor witnesses to such a distant place to defend him. Fair trial requires the accused to be availed all the possible means to defend himself.
Trying somebody in such a hostile environment, far away from his people and the terrain he knows and hold there in captivity on a charge that is generally bailable, cannot be said to be fair trial. These are the human rights violations George presides over.
So what human rights can George talk about? If anything, George has contributed greatly to the destruction of our judiciary and our entire judicial process and should one day be made to answer for all this.
Labels: CONSTITUTION, JUDICIARY, SEPARATION OF POWERS
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MMD’s use of govt resources, facilities
By The Post
Thu 19 May 2011, 04:00 CAT
The MMD is trying very hard to reverse its declining political fortunes. A lot of work is being done by ministers and other top party leaders to halt the party’s declining popularity and improve their chances in this year’s elections. This is a good thing.
It is not good to deceive oneself that all is well even when things are clearly not what they should be. It is always good to accept reality, the situation on the ground as it stands and then work to make it what one wants. But to change things, one has to understand the reality and what has caused it.
Of course, one’s political opponents are always alert to know what those weaknesses are that have caused one’s problems. They will try to exploit them politically and otherwise. When those weaknesses are recognised and subjected to honest analysis, political opponents may still take advantage of them but in a different way, in a less crippling way.
When weaknesses are recognised and subjected to analysis and criticism, they may be used by political opponents, but in a very different way. This is so because when weaknesses are acknowledged, they stand a better chance of being corrected.
And when weaknesses are corrected, a party gains strength; where it was unpopular, it starts to become more popular. This is why we say the approach the MMD is taking to try and find out its weaknesses all over the country and correct them is good.
And we hope they will carry out this exercise with utmost honesty, at least to themselves. But there is a bad side to what they are trying to do and that is their use of public resources in this whole exercise.
Ministers who are part of the party’s leadership have been dispatched all over the country for an exercise that will last many days. They have left government work for which they are paid by the taxpayer to pursue personal party interests. Government automobiles, fuel and drivers employed by the government are being used in this exercise.
The government is being made to pay allowances to all these people and also pay for accommodation and food. And this is for an exercise that is purely an election matter for the MMD. This is not a government exercise; it is an MMD campaign issue. Why should the government be made to pay for this? Why should the taxpayer be overburdened with MMD campaign expenditure?
We know that the MMD will try to deny that this is a party issue and claim that the ministers are doing government work, inspecting government development projects. This will not be true. This will be a lie. We say this because of the nature of the work that these ministers are carrying.
They are there campaigning. None of them can deny that they are campaigning for the MMD and its candidates using government resources. And MMD deputy national secretary Chembe Nyangu let the cat out of the bag when he disclosed that the ministers who were part of the party’s supreme body had been sent across the country to re-organise the party grassroots.
According to Nyangu, “originally, it was supposed to be 15 days. They were supposed to have started on the 1st of May, 2011 but most of them travelled on the 3rd, 4th just like that. Ministers are NEC (National Executive Committee) members. There are other people who are NEC members like Maggie Musonda. She is not a minister but she is out there.
Mrs Katele Kalumba, she is in Central Province”. Nyangu said the organs would inform the party on the popularity of people in constituencies:
“This time we are not going to get it from the constituencies or the district, we want to get it from the grassroots. As a party, we are looking at the grassroots. We don’t want to impose.”
According to Nyangu, this is what this whole exercise is about. Clearly, this is not a government exercise or programme. It is an MMD one.
We do appreciate the fact that the party in power may enjoy the advantages of incumbency, but their use of government facilities and resources should be within the law. They should not in any way use government resources in a manner that is not legally permissible. And moreover, their use of government resources and facilities should not in any way disadvantage their opponents.
The conduct of the election contest must be fair. However, where government resources are abused by those in power, the contest cannot be said to be fair.
There is need to create a thick line marking the distinction between the government and the ruling MMD. Lack of distinction between the ruling party and the government creates a climate of abuse which will lead to difficulties in us having free and fair elections.
For these reasons, the leaders of the MMD should not use government resources in a manner that puts others in an unfair disadvantage. There ought to be transparency in the use of public resources and facilities.
And we make a special appeal to the MMD and its government to realise that they have a serious responsibility. As facilitators of the elections, they should ensure that they carry out their work in a manner that does not disadvantage their opponents. They should also ensure that the concerns of all key players are adequately addressed.
It is not in dispute that today’s government comprises elements who are MMD. But there is a distinction between MMD and government. There is also a distinction between the government work and MMD campaign efforts. It is very easy for one in power to be tempted to abuse public resources to keep oneself in office. The MMD is under pressure and the temptation for them to abuse public resources to win this year’s elections is very high.
But as we have stated before, the exercise of power must be the constant practice of self-limitation and modesty. They should not just think of themselves; they should also think about others, about their competitors. When people think only of themselves and their own group, then there is division and frustration.
There is need to focus on the common good. We say this because authentic democracy promotes the common good of all. And the common good of all requires that the MMD stops using or rather abusing public resources and facilities for its election campaigns.
Labels: MMD, SEPARATION OF POWERS
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Zambia needs new political dispensation - Nkole
By Patson Chilemba
Fri 13 May 2011, 04:01 CAT
THE due process of the law will continue to be interfered with if the same political group remains in office after this year’s general elections, says Maxwell Nkole. Nkole, who is former Task Force on Corruption chairperson, said it would be difficult to have a new way of doing things under the current regime.
“I think we will continue on the same old platform and the due process of the law will continue to be interfered with, unfortunately. And that is up to the Zambian people to decide if this is what they want to see continuing. This is a year of elections, you never know where the country is going to go to,” Nkole said.
“But I know that the law normally is changed by the political system obtaining at the time, and should that change come this year, then I am sure that these issues will be looked at totally differently.”
Nkole said there was need for a new political dispensation to address issues like realising people’s demands for Director of Public Prosecutions (DPP) Chalwe Mchenga to go for allowing the Executive to usurp his powers.
He said whatever the Law Association of Zambia (LAZ) would try to do to remove Mchenga, even constitutionally, would face opposition from the government as he owed his continued stay in office to the current administration.
“So LAZ would have a mammoth task to try to issue any kind of mandate for the replacement of the DPP.
But it is an issue which amongst the legal fraternity, legal profession they are supposed to reflect on as to the independence of the DPP’s office, and also of the performance of the individual who is actually holding office,” Nkole said.
“That is within their competence as LAZ. They can come up with a position if they concur with the previous LAZ executive. If they have to add any more momentum and guidance, they should be at liberty to do so as well.”
Nkole said a new government after the elections would create an environment where the new LAZ could work, given the political direction the country would take.
“So in a way all those cases that have been withdrawn or suspended can only be revisited, I think, with a new political dispensation, not in the current system. So those are not dead issues. They are still alive I think in the minds of most Zambians,” said Nkole.
“And you can’t go beyond where we have gone, apart from stating very categorically that justice has been suffocated midway.”
Nkole said if another political group came into office they would look at issues differently, and then the new LAZ would have an environment within which they could interpret the law effectively.
Labels: CHALWE MCHENGA, MAXWELL NKOLE, SEPARATION OF POWERS
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‘Is the Attorney General a servant of the people’
By The Post
Sun 19 Sep. 2010, 04:00 CAT
A good servant must know who his master is. A servant who does not know who his master is, is a confused servant and cannot give the best service. This is a basic reality that those who are employed to serve our people must understand, or else they risk being irrelevant.
In the one party state, there was no difference between the party, the government and the state. The party reigned supreme. This was one of the weaknesses that led our people to demand a change to that system of governance. Today, we have a multi-party system. This system is supposed to guarantee our people’s democratic rights. It is not meant to serve the interests of the ruling party. But this seems to be the case today.
It seems that the wishes of the ruling party are paramount and superior even to the best interests of the state. There is an apparent failure to distinguish between the government and the state. The government is a transitional administrative structure that is ushered in through elections from time to time.
The state is the permanent entity that defines the nation. This is what we call Zambia. This Zambia, from time to time, hires a government to run its affairs for renewable periods of five years. This is how our democracy is organised. The government is supposed to serve the people and not vice versa.
In other words, whatever the government does must be in the best interest of the people or what we generally call in the public interest. But this is not what is taking place in our country today. The interests of government and its desire to retain power at any costs seem to supersede the dictates of public good.
This is the problem that Professor Michelo Hansungule is dealing with when he addresses Attorney General Abyudi Shonga’s refusal to appeal against judge Evans Hamaundu’s refusal to register the London High Court judgment against Frederick Chiluba.
Shonga has told the nation that his refusal was based on the instructions of his clients. The question that he has not answered is: who, in essence, is his client? Is it the government serving its party political interests or the state serving public interests? How does Shonga’s refusal to appeal a wrong judgment that compromises public interests serve any public good?
This is the issue that needs to be addressed. The Attorney General is not supposed to be a party cadre who carries out the wishes of the president regardless of their legality or illegality and effect on public good. Granted, he is an appointee of the president and in our system serves at his pleasure. But that is no licence for the president to use the Attorney General to get whatever decision he wants.
Like any ordinary lawyer, and more importantly the Attorney General, whose client is the Zambian public, is not supposed to carry out instructions that are wrong or in the case of the public, decisions that are against public good. Although in theory, the Attorney General is a lawyer from the government, the guiding ethos for his office is public good. He should never do or sanction anything that goes against public interests.
Hiding behind the fact that his client is government does not absolve him of the obligation to protect the public against abuse of power by the government. The Attorney General is not obliged to follow unethical or unconscionable requests from his client, the government. And the reason for this is very simple to understand. It is assumed that government always acts conscionably.
And for that reason, any instruction that is unconscionable goes outside what a government should do so that an Attorney General who is supposed to be serving the government in the public interests is not obliged to do wrong in the name of serving government as a client. What this means therefore, is that an Attorney General who does wrong can never hide behind acting on the basis of instructions.
This is because the only instructions that a government should give are those that are in keeping with public good. If instructions go outside public good, they cease to be legitimate government instructions. A good Attorney General must then take the opportunity to plant his flag of principle in the ground and stamp his authority.
He should not be driven by the illegitimate wishes of a government that is prepared to compromise public interests for political expediency. What we have said so far makes sense in relation to general legal advice away from the courts of law. But for matters that are in court, the Attorney General cannot be heard to say that he has been instructed to do x, y or z.
Instructed by who? We ask this because it is the Attorney General who is a chief advisor to the government. And the government is not the legal advisor to the Attorney General. The relationship of the Attorney General and the government is not the same as the relationship of an ordinary client with his lawyer.
This is because an ordinary client has a personal interest in the matter that a lawyer may be pursuing for him. This is not the same in the case of the Attorney General. The government or more specifically the president is not supposed to have personal interest in the issues that the Attorney General is pursuing on behalf of the general public.
A private client can decide to forfeit his interest because those interests are private. But a president is not supposed to forfeit public interests because they are not his to forfeit. This, therefore, raises a question: when the Attorney General says he is acting on the instructions of his client, what does he mean?
To us, it seems that the Attorney General has abdicated his responsibility to safeguard the legal public interests and has chosen to ride with the interests of the president and his political fortunes. We say this because it is very clear that if the Attorney General was acting in the public interest, he could not defend judge Hamaundu’s decision.
Furthermore, he could not, with a clear conscience, refuse to appeal a matter with such far-reaching implications. The registration of United Kingdom judgments in Zambia is not a matter that is only restricted to Chiluba’s highly politicised case. It is a decision that has implications for other areas of our endeavours as a nation. It is common knowledge that Rupiah Banda’s government has been boasting about bringing investment to our country.
The Attorney General knows or should know that a lot of the investment agreements that are concluded in our country involving huge amounts of money require the application of English common law and they also usually choose the United Kingdom as a seat for dispute resolution whenever disputes arise. The decision of judge Hamaundu which has refused the registration of UK judgments has called into question a number of these agreements which include UK law as an acceptable neutral law.
If the Attorney General was acting independently, he would be anxious to ensure that judge Hamaundu’s clearly wrong decision does not become the reason why this country begins to lose the opportunity to create employment by attracting investments. This is what happens when important decisions in the country are not made objectively but driven by shortsighted narrow interests.
We have no doubt in our minds that the Attorney General has a conscience and he knows that the decision he has made in the Chiluba case is not in the best public interest. But for one reason or the other, it is convenient for him to go along with the wishes of the government. This is not the way things should be.
The Attorney General’s office should be a strong office that is capable of safeguarding public interest with fear of recrimination. This office is just as important, if in some respects at least, not more important than the office of the Director of Public Prosecutions. It is wrong for this office to be run at the whims of politicians whose interests are not always consistent with public good.
As Prof Hansungule has observed, the only way that the Attorney General is going to serve the public interest is to recognise that he is a public lawyer and therefore his duty is to represent public interest and serve the people. This is a call that his office makes on him. If he does not have the courage to do this, he is in the wrong job and a danger to the public.
Labels: ATTORNEY GENERAL, MICHELO HANSUNGULE, PRESIDENCY, SEPARATION OF POWERS
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Chief Justice eager for autonomy of judiciary
By Mwala Kalaluka
Wed 07 Apr. 2010, 04:01 CAT
CHIEF Justice Ernest Sakala yesterday disclosed that he is eager for an entrenchment of a law that will make the Zambian judiciary financially autonomous.
And President of the Supreme Court of the Russian Federation Vyacheslav Lebedev said the judiciary system in his country is working at improving the information and technology communication to improve the system’s effectiveness.
Chief Justice Sakala said this during a conducted tour for Lebedev and his delegation at the Lusaka High Court.
“We have talked so much in my chambers. Some of the things we discussed relate to financial autonomy,” Chief Justice Sakala told a group of High Court justices.
“In Russia they have a specific law that guarantees financial autonomy of the judiciary.”
Chief Justice Sakala said Lebedev briefed him that during the global economic crisis, the Russian government had wanted to reduce the budget of the judiciary by five per cent but that the judiciary resisted the move.
“So while the budgets for other ministries were reduced, the budget for the judiciary was not reduced,” Justice Sakala said.
Justice Sakala said he hoped the Zambian judiciary could have a law like that too.
“We presented this law to His Excellency the President of the Republic of Zambia,” said Justice Sakala. “They are studying it. We hope it will be accepted.”
And Lebedev said the Russian judiciary was instituting measures of combating the problem of terrorism and cyber crime.
He said the recent terrorist attacks in Moscow were matters close to the people’s hearts.
Lebedev said the judiciary in Russia would fight terrorism through special legal procedure, especially that although there was a legal provision for death penalty in that country, the courts were not prescribing such punishments.
Lebedev said in most instances the death penalty was substituted by life imprisonment.
Lebedev said Russian courts have had a problem of dealing with so many cases given the fact that the country was spread across 11 time zones.
He said one way of improving the justice delivery system was through the increase in the number of judges and introduction of advanced technologies such as teleconferencing.
Lebedev said teleconferencing was a much cheaper way of handling cases.
“The main task now is to do all cases in the reasonable period,” said Lebedev.
“You see, it’s not only one measure but there is a complex of measures that help us do our job.”
Labels: ERNEST SAKALA, JUDICIARY, RUSSIA, SEPARATION OF POWERS
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Separation of powers
Written by Chilufya S. Chanda
I was not surprised by the judgment passed in the Chiluba theft case because any human being worth his salt should have read between the lines when President Banda told the nation that Chiluba was a damn good president.
The challenge for most Zambians is to understand what it is that President Banda has seen in Chiluba that his former boss, Levy Mwanawasa, did not. Unless there is something that must be hidden from the people of Zambia, President Banda should tell the nation how Chiluba was a damn good president.
My intention, however, is not to contest the judgment but the suspicious relationship between the Executive and Judiciary. When the Executive makes leading statements and what citizens interpreted comes to pass, it can never be treated as mere coincidence. Separate the Executive and Judiciary in order for this institution to regain the confidence of the people of Zambia.
Zambians know about the London judgment against Chiluba in which the man has been found liable. The Zambian judgment will not change anything about the London judgment.
Chiluba must tell the people of Zambia where he got his millions of dollars which were held in the Zamtrop account when Zambian people were and are still wallowing in poverty.
Labels: CORRUPTION, GOVERNANCE, SEPARATION OF POWERS
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