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| General Miyanda |
THE
Nation is under serge, says Heritage Party president Brigadier General Godfrey
Miyanda.
In his
open letter to the legal fraternity in Zambia, Brig. Gen. Miyanda stated that
there was an obvious strategy by the elected government to interfere with
judicial independence
Find
below Brig. Gen. Miyanda’s open
letter:
OPEN
LETTER TO THE LEGAL FRATERNITY IN ZAMBIA!
[Brig Gen
Godfrey Miyanda – 21st August 2013]
I write
this open letter to the legal fraternity (lawyers, judges including
magistrates, paralegal and other support staff of the judiciary) as a matter of
urgency. I wish to express an opinion on the prevailing situation concerning
the judiciary in the country. I make this appeal in my personal capacity as a
citizen to remove the perception of a partisan agenda. If there was a way for
me to appear on a national forum such as ZNBC television and Radio Zambia
without encumbrances I would gladly do so in order to make the case I am
putting forth in this open letter.
Debate on
the judiciary cannot and must NOT be curtailed for fear ofcontempt of court.
Even the judges themselves must surely be aware that THIS IS THEIR FIGHT,
except that they cannot wage it themselves in public. Alas this debate has been
divided between those who support the ruling party (PF), and those who are not
in government, currently labelled “the opposition”. But the subject is
definitely non-partisan.
So why
address the legal fraternity? When a nation is under siege all patriotic
citizens put aside their individual or partisan interests, to attend to a
national emergency. The situation obtaining in Zambia has not yet reached
emergency proportions, but it is fast approaching it. I believe that prevention
is better than cure. We must never wait until there is proof of injury to the
polity of our state and nation (the cultural, social, economic and even
military and security fabrics).
I am
addressing the legal fraternity since there is an obvious strategy by the
elected government to interfere with judicial independence. In keeping with
certain protocols and professional training, many legal persons are quiet even
in the face of obnoxious and outrageous breaches of the Republican Constitution.
While I appreciate the importance of professional discipline and etiquette
there comes a time when enough can be judged to be enough.
You, the
legal fraternity, understand better the importance of judicial independence. As
a young lawyer how can you be proud to stand before a judge, to fight for your
client, when the same judge has decided the case outside the court room due to
interference of one form or another? As a judge how can you have a free
conscience when you have been made to make a decision that you know is not
correct simply because you are intimidated or compromised? Do you legal people
still believe that the Blind Lady standing in front of our Courts blind-folded,
is still blind?
I am
appealing to you because many of you appear to be bystanders in the midst of a
sizzling fire, particularly the inferno raging around the judiciary. We want
and expect judges (and of course lawyers) that are as bold as a lion and as
blind as the symbolic Blind Lady. How can you as lawyers proudly stand before a
judge who has already made up their mind and argue a predetermined case? How
can you stand the situation where Big Brother is breathing down the necks of
judges to do the bidding of the Executive? What is the difference between you
and an ignorant party cadre who parrots praises in support of a wrong decision?
Politics
is about debate; opposition parties are being prevented from holding public
rallies in spite of the landmark “Mulundika and Others” judgement – you are
silent!Equally, demonstrations,which are part of the democratic discourse, have
been curtailed. In the Mulundika case, His Lordship the former Chief justice
Mathew Ngulube pointed out that it would be expecting too much of those in
power to be generous in allowing their opponents a free ride in holding
rallies. How true has that powerful judgement become today!
Threats
by a head of state must not be taken lightly because it is like Muhammad Ali
threatening to beat up a defenceless 10 year old girl; she will likely wet her
clothes out of fright! Let me remind you of one “Muhammad Ali” who delivered a
fatal punch to a sitting Zambian judge.
You may
recall a judgement to which the Heritage Party (and I) were a party. An
injunction was properly granted to the Heritage. The Post newspaper became
aware of it and published it as a front page story on the Saturday that the
Republican President was to hold a press briefing. The President was not
amused; so he devoted the first five minutes of his press briefing lambasting
the judge, and verbally directing the Chief Justice to ‘do something about it’.
On the following Monday the Judge reversed his ruling without hearing the
Plaintiff (Heritage). Part of his judgement was to apologise to the President
(Judges do NOT or should NOT apologise to the parties, especially those who
have not had the courtesy to appear and argue their case). That ruling shows
what a threat by an African President does; we are in a regime that does not
hesitate to threaten anyone, be they MPs, chiefs, students, church leaders and
even lambasting Service Chiefs of our Defence and Security Services in public
and in front of their subordinates. So this open letter must be viewed in this
light especially that our President and Commander-In-Chief has refused or
neglected for two years to grant the media a chance to interview him and ask
pertinent questions. He has brought about the debate that is now raging
regarding the judiciary by displaying an unquenchable appetite to control the
other two arms of government. This seed mustnot and should not be allowed to
germinate or grow.As you obviously are aware the concept of the Separation of
Powers in its modern application focuses on limiting dictatorial tendencies, so
that none of the three arms of government should reign supreme over any of the
other two (namely the Executive, the Legislature and the Judiciary). This is to
avoid arbitrary rule, which is now prevalent under the PF regime.
The case
of the Acting Chief Justice should be viewed from this perspective, that it is
NOT her qualifications as a lawyer and judge that are being questioned. It is
the insistence by the Government to rubbish the Supreme Law of the land and
keep her in office.
And yet
judicial independence is NOT for the enjoyment of the judges but for the
protection of all citizens, especially the weak and vulnerable in society. When
a regime demonstrates its prowess/power but ignores the Constitution and other
laws, it is time for all right-thinking citizens to speak out and not pretend
to be “good boys and girls”. That time is now. Do not wait to put on your gowns
and wigs but put on boxing gloves because it is right for all to speak out and
challenge the blatant abuse of citizens’ rights and breaches of the
Constitution. The writing is on the wall!
I
reiterate that no judge should be directed as to what judgement to deliver, not
even by their seniors such as the Chief Justice or other senior lawyers; if
such tendencies exist they must be nipped in the bud before the cancer spreads
and becomes the normal practice.
My
concern is that our established systems are being destroyed under the now
abused phrase of “the mandate”, using carefully worked out schemes to
circumvent the law. These things are going on while the majority of you, the
legal fraternity, have become idle spectators. I call upon you all to put on
your non-partisan spectacles and see clearly that the whole nation is adrift.
We need direction; we need dialogue not threats, intimidation and/or bribery
and buying of opposition Members of Parliament.
Early
this year I called on the President to address the nation (The Post, Issue No.
570 dated 21st February 2013 on page 2; Daily Nation 22nd
Feb 2013 page 6; Daily Nation 12th June 2013 page 6). I had also
made the same call last year (The Post October 2012; Daily Nation 19thOctober
2012 Issue No. 305 page 6; Daily Nation 20th October 2012 Issue No.
306 page 6). Other political parties, civil society and ordinary citizens have
made similar calls but the Executive have chosen to ignore the calls. Since
then more breaches have occurred, prompting me to address and appeal to you who
are experts in matters of law and who may better put the issues to the
Executive. This is not idle “politicking”. I thereforeappeal to all of you
described as “the legal fraternity” to stand up and be counted.
Finally I
take this chance to appeal to fellow Zambians to feel for judges (magistrates
included) in the lonely task of having to satisfy all litigants who demand and
expect justice. Regrettably, justice to all litigants means winning a case; but
it is not possible for both sides to win unless they settle the matter out of
court. But if they attend court, they must have confidence that the judge will
not be looking at their faces but at the evidence. That is why those in
authority, especially the Republican President, must not be the ones
threatening the judges or compromising their independence. I urge that judicial
independence be protected and preserved at all times; barring corruption and/or
other improprieties, there is no immediate substitute for our current judicial
system.
GODFREY
MIYANDA,
BRIGADIER
GENERAL,
ONE OF
THE CONCERNED CITIZENS
[21ST
AUGUST 2013]
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