>---------- Forwarded message ----------
>Date: Tue, 27 Feb 1996 14:42:36 -0200
>From: David Lush - MISA <dlush@ingrid.misa.org.na>
>To: Multiple recipients of list <misa-news@wn.apc.org>
>Subject: CORRECTION - ZAMBIA ALERT UP-DATE
>
>ACTION ALERT UP-DATE - ZAMBIA
>FEBRUARY 27, 1996
>
>
>PARAMILITARY POLICE SURROUND EDITORS' HOUSES AS ARREST ORDER IS ISSUED
>
>An order has been issued for the arrest of Editor-in-Chief of The Post
>newspaper, Fred M'membe, the paper's Managing Editor Bright Mwape, and
>columnist Lucy Sichone. Paramilitary police have been waiting at the
>journalists' homes in the capital Lusaka since last night. M'membe, Mwape
>and Sichone were not at home when the police arrived, and are believed to
>be in hiding.
>
>According to staff at The Post, Speaker of the National Assembly, Dr
>Robinson Nabulyato, this morning issued an order for the arrest of M'membe,
>Mwape and Sichone. Staff further said that two armed paramilitary police
>officers were waiting at Mwape's home, while a further six to ten were
>stationed outside M'membe's house. Police also reportedly went to Sichone's
>home, but left when they found that she, too, was not in.
>
>M'membe, Mwape and Sichone were due to appear before Parliament's Standing
>Orders Committee on Friday (February 23) to be sentenced for being in
>contempt of Parliament. The three did not appear and have been lying low
>ever since. The contempt charge relates to articles the three wrote
>commenting on Vice-President Godfrey Miyanda's criticism in Parliament of a
>January 10 decision by the Supreme Court to rule as unconstitutional
>sections of the Public Order Act, which required people to obtain police
>permits for public gatherings. The articles were published in the January
>29 edition of The Post.
>
>The following day, Miyanda raised a point of order in Parliament about the
>articles, and the matter was referred to the Speaker, who on Wednesday
>(February 21) found the three guilty of contempt of Parliament. Nabulyato
>in turn referred the matter to the Standing Orders Committee which
>apparently has the power to sentence those guilty of contempt of Parliament
>to as much as a year's imprisonment (with or without hard labour).
>
>In a statement issued on Friday, The Post's Special Projects Editor,
>Matsautso Phiri, said a member of the Standing Orders Committee informed
>the paper on Thursday (February 22) that the committee had decided to
>sentence M'membe, Mwape and Sichone each to four month's imprisonment.
>
>MISA's representative in Zambia, Fanwell Chembo, said that those previously
>found guilty of contempt of Parliament - legislation dating back to British
>colonial rule - had simply been rebuked by the committee. "This is the
>first time that the committee may pass a sentence," Chembo explained,
>adding that it was believed that the ruling Movement for Multi-Party
>Democracy (MMD) - which dominates the Standing Orders Committee - was using
>the opportunity to punish The Post for its relentless criticism of the
>government and the MMD.
>
>RECOMMENDED ACTION:
>Write to the Speaker of the National Assembly, Dr Robinson Nabulyato
>- expressing dismay at the fact that a democratically-elected parliament
>should resort to antiquated and undemocratic legislation such as that used
>to "convict" M'membe, Mwape and Sichone in what was obviously a blatant
>violation of the three's right to free speech.
>- calling for an immediate reversal of the convictions
>
>WRITE TO:
>Dr Robinson Nabulyato
>Speaker of the National Assembly
>PO Box 31299
>Lusaka
>Zambia
>Fax. +260 1 292252
>Tel. +260 1 292425 / 427
>
>FOLLOW THE ARTICLES BY M'MEMBE AND SICHONE WHICH RESULTED IN THE CONVICTION
>FOR CONTEMPT OF PARLIAMENT:
>
>
>>From The Post ofd Monday January 29, 1996:
>
>@ Lucy Sichone on Monday: Miyanda has forgotten about need for justice!
>
>VICE-President Godfrey Miyanda is alive and addressed by his title of
>Brigadier General because of the courage and integrity of a few men in the
>judiciary who defied KK to ensure that justice was done when he was
>arraigned on a treason charge of which he was not guilty.
>Miyanda cannot have forgotten the courage of one judge who refused to sit
>and hear his case until his jailers removed the chains with which he was
>shackled in the court room. Miyanda could not have foregotten that in the
>circumstances of the Second Republic, it took men of courage and integrity
>to acquit him of a crime for which the government decreed him guilty. Yet
>KK even in cases such as that of Miyanda where courageous judges dispensed
>justice in defiance of his wishes, never abused a one-party rubber stamp
>parliament to attack the decisions of those judges who risked their necks
>for Miyanda's constitutional rights to equality, justice and protection of
>the law.
>In view of this, Miyanda's condemnation of the courage and integrity of the
>Supreme Court judgment which merely applied Article 1 (2) of the
>Constitution which reads "This Constitution is the supreme law of Zambia
>and if any other law is inconsistent with this Constitution, that other law
>shall to the extent of the inconsistency be void" was cheap, false and
>cowardly. Miyanda's statement was cheap and false because Section 7 of the
>Public Order Act was declared void only to the extent where the exercise of
>the right to assembly could be enjoyed at the discretion of a policeman.
>The requirement for the police to maintain law and order at any assembly
>still remains in place.
>It was a cowardly statement because he could only attack a decision made by
>men of the stature, dignity and integrity of Mathew Ngulube from behind the
>protective skirts of grand mother Nabulyato. I have no doubt that Miyanda
>being a devout Christian had in mind the parable of the unmerciful servant
>whose many debts were forgiven but who withheld the same kind of mercy
>shown to him from his debtors and had them thrown in prison. The Bible says
>that when the master who had forgiven his servant heard what he had done,
>he had the unmerciful servant thrown into prison for not extending the same
>kind of justice shown to him by his master to his debtors. Miyanda is
>depending on Nabulyato to save him from the natural consequences of his
>actions and soothe his conscience. What hypocrisy?
>If Miyanda was an honest man he could not have lined political violence
>which is being fanned by himself to the decision of the Supreme Court. And
>by the way the re-enactment of the POA will not solve the problem of its
>invalidity by Article (2) of the Constitution and as long as we have
>individual judges of courage and integrity, such a law will not stand. The
>veep will just have to be a man enough and abolish the bill of rights as it
>exists in the Constitution and rule in the manner everyone, including his
>colleagues in the MMD know he would like to rule - as a Christian Abacha.
>For as  someone said of Lyndon Johnson "One cannot imagine an act so small
>that he would not commit it, nor words so hollow that he would not utter
>them. He is a crescendo of hypocrisy and pettiness who has managed to
>congeal in one personality the worst elements of man's most honoured
>traits. He is capable of anger but not passion, he is pious without being
>religious, tough without being brave, sincere without honesty and vain
>without pride."
>As for the honourable MPs who called for the removal of Mathew Ngulube from
>his job, I can only advise that individuals of the calibre of the current
>Chief Justice do not depend on the trappings of office to be heroes. They
>are heroes because of what they are and not what they do.
>I know that this is  difficult to understand in a country where there are
>no heroes, no role models, where honour and integrity are conspicuous by
>their absence.
>Ngulube, outside the CJ's office would still command the same kind of
>respect that would compel most of us in need of a role model, guidance and
>just old fashioned advice to seek him out and and learn from his
>experience. The assumption here of course is that he has always been and
>continues to turn down consultancies and offers of jobs from around the
>Commonwealth and USA in order to help those of us who benefit from his
>wealth of legal knowledge and plain common sense. Further, I know that it
>is a trait of human nature to judge others by our own standards.
>Consequently, those who measure their wealth by their job description,
>believe that all persons depend on their positions for some measure of
>stature, respectability and dignity. In fact it is the other way round; it
>is inherent integrity of the person that vests an office with qualities of
>respectability, integrity and dignity.
>The current leadership crisis has been brought about by a critical shortage
>of men and women capable of imparting honour, integrity and dignity to
>their offices whether it be in judiciary, executive, legislature, civil
>service, etc.
>In the circumstances, it is absolutely necessary that I pay tribute and
>salute Justices Ngulube, Muzyamba and Sakala in their capacities as human
>beings, because it is the qualities of their humanity that is reflected in
>that landmark judgement which shall be forever cherished by all freedom and
>peace loving Zambians.
>ENDS
>
>@ Fred's Diary: Miyanda's reaction to  court ruling 'justified'
>
>By Fred M'membe
>Last week Vice-President Godfrey Miyanda, legal affairs minister Remmy
>Mushota, and energy deputy minister Ernest Mwansa opened a vicious attack
>in parliament on the Supreme Court for declaring sections 5 (4) and 7 (a)
>of the Public Order Act unconstitutional.
>Vice-President Miyanda and other ruling MMD officials have every right to
>feel disappointed with the Supreme Court's ruling on the Public Order Act
>as it was a treasured political weapon in their hands.
>They used the restrictive laws not only to stop anti government protests
>but also to harass and humiliate their political opponents.
>The Act enabled MMD officials to hold meetings at very short notice as they
>did not, in most cases, require police permits as most of their top party
>officials are also ministers.  And the police is under the control and
>direction of those who are in power.
>Supreme Court's ruling has, in some very big way, levelled the political
>play field in so far as mass mobilisation through political meetings is
>concerned.
>The ruling MMD has indeed lost some political advantage. And looking at the
>way the MMD officials are reacting to the Supreme Court judgment loss must
>have been gigantic - the bigger the advantage the greater the resistance to
>losing it.
>
>@ What will replacing the Public Order Act mean?
>
>By Fred M'membe
>Last Thursday Vice-President Miyanda, who is also the leader of the House,
>told Parliament they will make another law in the place of the lost Public
>Order Act.
>"We will make amendments to see that sense comes to the law so that we
>don't have anarchy," Vice-President Miyanda told parliament last Thursday.
>"The courts should have cast their nets wider and looked at the wider
>implications of their judgements."
>But what does this mean? Doesn't it mean bringing back another Public Order
>Act under a different name? What are the implications of all this if it is
>effected? Does it undermine or strengthen the separation of powers?
>But Vice-President Miyanda is not the only top government official
>attacking the Supreme Court and it's judgment.
>Legal minister Remmy Mushota, who seems to be living only for today with
>little interest in tomorrow, has gone beyond criticising the Supreme Court
>judgment to attacking the political affiliations of the individual judges,
>of course in a cowardly manner - without giving names or elaborating.
>Last Wednesday Mushota told parliament that judges should refrain from
>political party membership because this would clout their judgments.
>"When the judiciary set a political platform in their judgments they risk
>antagonising the legislature," Mushota told the house. "Any attempt by
>anyone to use the bench for legislation would land them into trouble."
>Energy deputy minister Ernest Mwansa accused the Supreme Court of imitating
>what happens in other countries.
>"The problem is that people imitate what happens in other countries like
>the United States," Mwansa told parliament last Wednesday. "It is possible
>for people to demonstrate without permits in the United States because
>there were enough policemen to deal with the crowds which was not the case
>in Zambia."
>Whereas I agree with Mushota that the judiciary is not the legislature, I
>believe the High Court and the Supreme Court has power to declare acts of
>parliament unconstitutional. This is not equivalent to "using the bench for
>legislation", as Mushota claims.
>What seems to be clear now is that the executive doesn't seem to accept, in
>practice rather than in theory, the separation, or indeed the sharing of,
>power among the three arms of the state - the executive, judiciary, and
>legislature.
>In Zambia, as matters stand today, the independence of the legislature is
>not more than a theoretical ideal.
>The executive controls and directs parliament. The leader of the house, the
>Vice-President and the man who lead the attacks on the Supreme Court
>judgment in parliament, is the number two man in the executive. The
>majority of the members of the legislature are executive officials. The
>executive determines who should be speaker and deputy speaker. The
>composition and character of this parliament is of very little practical
>significance in the separation of powers. It is purely symbolic.
>And having taken over the functions of parliament, the executive has become
>excessively greedy and would also like to interpret the Constitution and
>all other laws, taking over judiciary functions.
>It is common knowledge that some judicial officers, at various levels, have
>offered themselves to the service of those in charge of the executive. They
>consult and brief members of the executive in all matters in which they
>think they have an interest.
>Judicial officers who were seen to be supporters, or ruled in favour, of
>the MMD were rewarded with promotions after the change of government. These
>favour-seekers are not even ashamed to allege that those who rule against
>the MMD and government have political affiliations with the opposition or
>former president Kenneth Kaunda.
>But these are not the judicial officers Mushota is concerned about, because
>they always, in material matters, rule in favour of the ruling MMD.
>The MMD government, like it does with everyone who refuses to toe it's line
>or takes an independent position, is trying to discredit Chief Justice
>Matthew Ngulube, Justice Weston Muzyamba, and Justice Ernest Sakala as
>being supporters of some opposition parties. And if these belong to the
>opposition, and since no person can be independent in this country, it will
>be interesting to know which political party deputy Chief Justice
>Bonaventure Bweupe and Justice Chaila belong to. It is certainly not an
>opposition party!
>This is the some total of Mushota's insinuations.
>But if the Supreme Court can be said to be so weakly constituted what type
>of justice can those involved in legal battles in magistrate courts with a
>president expect to get. If the Chief Justice can be harangued in
>parliament in that way what more a mere magistrate or an ordinary High
>Court judge? These may probably explain why two High Court judges, Lombe
>Chibesakunda and David Lewanika, who enjoy some considerable respect as
>human rights judges, opted not to rule against the State.
>As for Mwansa's claims that "the problem is that people imitate what
>happens in other countries like the United States", the deputy minister
>forgot that the parliament he was talking from is an imitation, the suit,
>shirt, necktie, shoes, pair of socks, underwears and the wrist watch he was
>putting on are imitations. The Speaker's robe is an imitation from England.
>The Constitution of the Republic of Zambia and its bill of rights is an
>imitation. There is no need to labour much on this, the best thing for
>Mwansa would be to shut up.
>It is clear that there are some serious separation of powers deficiencies
>in our system of government, but we should not allow it to be weakened
>further by wicked men, because, as we have seen, it does to some extent
>provide an important safeguard against the potential abuse of power by the
>executive.
>
>ends
>
>David Lush
>Media Institute of Southern Africa (MISA)
>Private Bag 13386
>Windhoek, Namibia
>Tel. +264 61 232975, Fax. 248016
>e-mail: dlush@ingrid.misa.org.na
>
>
>
>
>