Response to M’embe’s editorial on Masumba

THE FOLLOWING EDITORIAL WAS PUBLISHED BY THE POST ON SATURDAY. FIND THE ZWD RESPONSE WITHIN
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Given where we are coming from as a nation, the conviction of Stephen Masumba and his being sent to prison is a big credit to the rule of law in this country.

Watchdog response: It is not. It is a credit to the particular magistrate who handled the case and shows that within the rotten judiciary especially at the top, there are still a few men and women who can be counted on. If Acting Chief Justice Lombe Chibesakunda or one of the corrupt senior judges handled this case, Masumba would have walked to freedom. He has appealed right? Wait and see.

Masumba at the time of his conviction was a deputy minister in President Michael Sata’s government. Masumba is a vital member of parliament for the Patriotic Front because he represents a region of our country where the ruling party’s support base is weak. But still more, Masumba has not been spared from the due process of the law. And above all, after his conviction, he has been fired from his position as deputy minister of sports. For this, the biggest portion of credit goes to Michael.

Watchdog response: If Sata is such a believer in the rule of law, why did he appoint Masumba when he knew or ought to have known that he was under arrest? Masumba was arrested way before he was appointed deputy minister. In fact, it was this arrest that sent Masumba to PF in search of protection. The answer could be that at that time Masumba was vital and needed to penetrate Northwestern. Now he is dispensable. He has already ‘taken’ PF to Mufumbwe. If it was GBM, Kabimba or any of Sata’s really allies; we would be talking about a different matter today.

We should not forget that when faced with similar situations, Rupiah Banda acted differently. Rupiah got the result he wanted from our courts. If he wanted a friend to be acquitted, he got the acquittal. If Rupiah wanted an enemy or opponent to be convicted, he got the conviction.

Watchdog response: Is that so? Looks like you are the only one who has forgotten. Who was president of Zambia in 2010 when deputy minister of Health Dr Solomon Musonda was fired? Was it not Rupiah Banda who relieved Dr Musonda for shooting a PF thug? Infact, RB relived Dr Musonda of his duties even before he was convicted. The Post newspaper itself reported that:“President Banda said he has decided to relieve Hon Musonda of his duties after receiving a report indicating that the Director of Public Prosecution has recommended for the prosecution of the deputy minister following a shooting incident in his constituency. President Banda said he wanted Hon Musonda to concentrate on his case. The President said he also wanted the judicial process to take its course in the matter.” 

So who deserves more credit here, Sata or RB?

 

When Rupiah wanted Frederick Chiluba to be acquitted of his corruption charges, the acquittal was granted. And Rupiah went around boasting that he freed Chiluba from going to jail. And when Rupiah wanted Chiluba’s assets not to be seized following the London High Court judgment that the government had obtained against him, his wish was granted. This is not the case with Michael. He would have loved Masumba to be acquitted, but there was nothing he could do – the rule of law had to take its course.

Watchdog response: Why can’t Sata register the London Judgement now or seize Chiluba’s property instead of decorating and improving the ‘plunderers’s grave?

Some credit also goes to Masumba. At no point did Masumba try to politicise his case as most politicians do whenever they are arrested and prosecuted for a crime or any offence. Masumba sincerely believed he was going to be acquitted. And when the acquittal did not come, he looked for no other avenue other than the one he is entitled to under the law – appeal to the High Court.

Watchdog Response: Perhaps Fred M’emembe and Mtembo Nchito can learn a lesson from Masumba over the K14 billion they owe us through the DBZ and other parastatals.

And Masumba’s appeal is a legitimate one. The fact that the magistrate’s decision in this case has been respected does not mean that one should agree with it. Our courts do sometimes get things wrong. And this error margin in their decisions is provided for through the appeal system. And sometimes if the court arrives at a wrong decision maliciously, the law also provides for other avenues for one to complain against that type of misconduct.

Watchdog Response: All appeals are legitimate. But why is the Post so bitter in this particular case? Is it because the magistrate ignored their malicious editorials aimed at intimidating him so that he could acquit Masumba? Please understand that you have lost influence. No one apart form Sata and other thugs take your editorials seriously.

This is the way things should be conducted. And as Robert Sichinga correctly says, the law of the land should be the same for everyone regardless of their political positions or affiliations. This is what the rule of law entails: equality before the law. The right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just and democratic society. Whether rich or poor, political ally of the state or opponent – all are entitled to equal protection before the law.

Watchdog response: Very true. This equality should however be extended to paying back government loans. You can’t be pursuing cross border traders to pay back the one pin they owe CEEC but let those who DBZ K14 billion to go scotfree.

Of course, the democratic state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so. However, under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all its people.
No one is above the law, which is, after all, the creation of the people, not something imposed on them. The citizens of a democracy submit to the law because they recognise that however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, the law and democracy are served.

Watchdog response: The truth however is that, practically, the law is made by the ruling class and some like Wynter Kabimba not elected but imposed on the people. Further, in most societies including Zambia, rulers are above the law. That is why Sata told the ACC not to investigate his ministers. It is because he sees himself and his friends to be above the law. Conquerors make the laws; losers obey them. That is the reality not the rubbish above.
Gone are the days when 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 have derived 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.

Watchdog Response: we hope the author knows that even today, the Queen/King of England is above the law. He or she cannot be tried in her own court. Even if the queen shot someone today, she cannot be arrested. That is just how it is. Government is called the queen ‘s government. The Opposition is called Her Majesty’s Most Loyal Opposition. In England, law is made in the name of the queen.  That is why every Act of parliament in UK starts with these words:  ‘Let it be enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:’

So please, read widely before making comparatives to things you have little knowledge about.

In today’s world, the independence of the judiciary is central to the administration of fair and equal justice. But, of course, no one will stand up and say ‘I don’t want an independent judiciary’. Even Rupiah would not openly say he doesn’t want an independent judiciary although he was abusing it and undermining its independence. We have problems today in our Judiciary because of the way Rupiah and his friends handled judiciary matters. It will not be easy to clean up the mess Rupiah and his friends have left in our Judiciary without risking to be seen to be interfering with the independence of the Judiciary. Some people will want to continue to be using the Judiciary the way they were using it while in power, and to have the friends they put in the Judiciary continue to serve their interests. And this is happening right now, but give it to Michael, he has responded to all these challenges with great and admirable self-restraint, self-limitation and moderation. This is what the rule of law and democracy require. The exercise of power must be the constant practice of self-limitation and modesty. We support those who believe a judge to be the proper authority to determine judgments, and not politicians or other authorities as it was increasingly becoming the practice under Rupiah and his friends. Again, as Pope John Paul II taught us, “Authentic democracy is possible only in a state ruled by law, and on the basis of a correct conception of the human person.”

Watchdog response: The simple issue here is that parliament, LAZ and other stake holders have rejected Lombe Chibesakunda as Chief justice. If Sata was even a quarter of the things said about him above, he would have listened to the demands of the people. Instead, because Sata is a thug and rogue, he wants to have his way. He wants to put relatives and puppets suggested by M’embe and others to control the judiciary. It is clear that M’emembe is having a hard time to control some judges so he seem Rupiah Banda in his problems.

When political allies or friends are in trouble with the law, the decent thing to do is to hire them a good and honest lawyer and ensure that they get a fair trial. It is not to try and undermine the rule of law, abuse the judicial process and allow them to go scot-free as was the case with Rupiah.

Watchdog Response: Why didn’t you hire one for Steven Masumba? Instead you got someone who was telling the court that Masumba got the forged diploma by mistake???

If Masumba is truly guilty of the charges against him and the subordinate court is right in its decision, then let the High Court uphold that judgment and send him back to prison.

Watchdog Response: So stop trying to intimidate the judge.

However, if Masumba still elects to proceed to the Supreme Court and have his day in the highest court of the land, let that be so. But if the Supreme Court also finds him wanting and upholds the decisions of the lower courts, let Masumba accordingly serve his sentence for the crime he is accused and convicted of. His friends, those who truly love and care about him, should pay him visits in prison and take him some food and give him all the support he needs. Of course, he will not be on a life sentence. When he comes out, he can still remake his world in a more honest way.

Watchdog response: The Supreme Court in its current format cannot find Masumba guilty even if he was. And yes, the people who truly love Masumba not those who wish to use him politically will always stand with him. 

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