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Wednesday, 2 September 2009

You are all in danger..

That appears to be the message the Judiciary is keen to send to anyone with independent thought, with this baffling indictment of Prof Ndulo. How soon will it be before the Judiciary foolishly begin to indict every journalist or blogger? If the treatment of Prof Ndulo is anything to go by, it won't be too long. There of course remains the question of the practicality of serving summons to anyone abroad who disagrees with a given court's handling of critical issues. There's no jury involved, so why people should not feel free to comment on matters before the court is difficult to fathom. The Judiciary may pretend to be independent from the Executive but it should remember that it serves at the Zambian society's pleasure. As such it is the job of each and every Zambian, at home and abroad, to hold it to account. It is a sad sight when the tools of the justice become tools of oppression, as it now appears to be case. Let freedom reign.


  1. Monkeys aren't safe either:

  2. Here is a good example of Prof. Ndulo's previous writings on subjects which we often discuss here:

  3. Freedom of speech is not absolute, while prof ndulu's indictment is a subject of debate we must acknowledge that we cant allow people publishing personal judgements on matters before the courts of Law.There has been several court cases where the media has seemingly chosen to use the editorial to blackmail a prisiding judge.The newspapers have even gone further to make such a judge a subject of their editorial ridicule each time the olds seem against the side they have taken on a case even before judgement is passed. If we want to forgore Laws mearnt to protect the courts then we might as well do away with the whole justice system. Iam disappointed that prof Ndulo is now sayng our courts have no juridiction over Ameriacan soils where he is and at the same time wellcoming the summons that he likely wont recognise on the basis of jurisdiction.

    MMD MUST GO 2011.

  5. Zambians are just too unruly. Even when they should keep quiet and listen, they choose to make noise and comment on issues that are in process. Both the Kabwela and Ndulo cases are perfectly legal in any modern true democratic society.
    In a democracy, if anyone has a grievance, the courts are there to determine the case. There is nothing wrong with taking anyone to court if you feel aggrieved. It is the outcome of the court that you should be commenting on and not the idea of taking a case to court.
    In the US and UK, people get taken to court for silly reasons like a thief breaking a leg on the stairs whilst robbing your home. The court is abused when it rules that you have to pay his claim because you loosened a step on the staircase to stop him from robbing you; yet this chap would have never got hurt if he did not try to rob your house. He robbed your house at his own risk.
    Never-the-less, Zambians are known to flip flop on issues. If it is the Post calling Banda a thief, everybody in urban areas & the Diaspora will rush to defend the paper when it is summoned to court to explain this allegation. People will say the government is victimizing the media before the case is even heard or decided upon. But when it is the Post taking the government to court, people conclude that this is justice and the Post losing the case is justice denied.
    I think for us to develop into a civilized country, we must start by acting in a civilized way. This includes respecting that there is a judiciary and that its role is to determine cases in a just manner. If the judiciary fails to execute its mandate, then there is cause for criticism. In the interim, we should not declare the outcome of a case until it has been cleared by the court.
    This is how civilized people behave!

  6. Musonda, I agree with you. But don’t you think Zambians don’t really understand why they have a government and why the government is split into the executive, the judiciary and the legislature? This idea of government is foreign to us. When we see a person acquitted, we immediately claim the “executive did it”. When parliament passes a controversial bill we say “the executive did it”. When the executive redefines a pre-existing policy we say “the executive did it”. Everything is “the executive did it” when it turns out in governments favour.

    This comes from a cultural history of chiefdomship. In a chiefdom, the leader calls all the shots. There is no separation of powers, constitution, policy, etc... It is just a system of what the chief says and wants. This primitive culture is still stuck in the minds of many Zambians. This is why you need to get the chiefs on your side to win an election.

    As for urban dwellers and those in the Diaspora, these Zambians are lost! They are stuck between a Western system developed over 100’s of years being implemented in their country to respond to the needs of people who don’t understand it, and a cultural system in rural areas where the majority live who don’t intend to follow the western system because it is foreign to them. These people have no chiefs to guide them and they don’t understand the intricacies of a western system of government.

    Therefore, they tend to flip flop because in their minds, western governance clashes with cultural governance and all hell breaks loose on radio shows, newspapers and blogs.

  7. That is a very interesting analysis you’ve made “Anonymous”.
    Try writing an article praising communism in any of the US newspapers and firstly, the paper won’t print it. If they do, they risk being cited and taken to court together with the author. These days, even articles praising martyrdom are a likely to land you in court or Guantanamo bay.
    I don’t blame them because they have to protect their citizens from radical thinking which threatens their way of life.
    So how are we going to protect Zambians from destroying themselves by reading negative articles in the Post Newspaper aimed at causing anarchy in our country?

  8. Musonda,

    Zambians are just too unruly. Even when they should keep quiet and listen, they choose to make noise and comment on issues that are in process. Both the Kabwela and Ndulo cases are perfectly legal in any modern true democratic society.

    In no way shape or form does sending an image of a woman giving birth to government officials amount to distributing pornography. Distributing pornography itself is a joke in the internet age, because whatever restrictions countries thought they could set on their citizens access to pornography, have been swept aside by the internet.

    This is a political prosecution, and should have been dismissed by the judge as lacking enough evidence to proceed.

    Commenting on this case in international media is not a crime either. There is no jurypool to contaminate, and no one is under a gag order.

    There is no there, there.

  9. Media Regulation Bill

  10. Neither is there substantial evidence to assume that a column praising communism is tantamount to attempting to overthrow the state, yet many have been locked away for this in western countries.

    The judge is not mandated to throw cases out before they are heard. This is biasness and a clear dictatorship. The rule of law is clear and the judge is obliged to listen to both parties before passing judgement. This is ‘fair’.

    Turn the tables around for a minute. Would it be just for a judge to throw out a case on face value where the Post was suing the state for accusing it of trying to force an uprising through its editorials?

    Would you not be the one writing about how Zambia’s judiciary is compromised because it threw out the case before it could even be heard?

    Don’t you think the ‘just’ thing to do is to listen to both sides and then pass judgement and not unilaterally pass judgement based on public opinion or one side only?

  11. Anonymous, you beat me to it.

    I think the justice system is misunderstood in Zambia. People do not understand why it exists, how it is supposed to function and how it is supposed to bring justice to our people.

    People in Zambia want to be able to flip flop between a dictatorship and a democracy, when it suits them.

    This is uncivilized!

  12. If MMD are ousted in 2011 (which is most unlikely), the new government will not withdraw the Media Regulation Bill, it won’t privatize the Daily, the Times and ZNBC, and it will react in the same way the MMD is when the Post attacks them.

    This is a fact!

  13. Therefore, they will have failed before they even started.

    Furthermore, the new government will pardon Chiluba (as Sata said on radio yesterday) and claim Levy was using the task force to punish his enemies.

    And Zambians in urban areas and the diaspora, will write negative things about our new government, regardless of the seperation of powers that exist.

    Our new ruling party will have to call for early elections and not participate in it, to satisfy urban Zambians and the Diaspora.


  14. When a case takes 7 years to conclude and it judges in favour of the accused only after the president dies, then you know the judiciary was compromised by the executive. But when a case is taken to court and the judge decides to listen to both sides before passing judgement, you know justice is being served.

  15. You are of the the Utopian world totally misguided in your understanding of democracy and freedom of speech.The two are not absolute but come with responsibility and a caveat for strict observance of the laws of the land.

    A departure from the laws is always problematic anywhere in democracy.Any case before the courts cannot be taken with the kind of prejudice you are registering here.If you think misconduct with the judicial system is the way to go, then you are are not of this world because nowhere in the democratic and law society does that indiscipline thrive freely.Wrecking our laws and judiciary is not only dangerous but a ticket for despondence you don't wish unfolding.

  16. Anonymous 02 September 2009 15:42,

    The judge is not mandated to throw cases out before they are heard. This is biasness and a clear dictatorship. The rule of law is clear and the judge is obliged to listen to both parties before passing judgement. This is ‘fair’.

    I am not saying that the judge should throw out the case before the prosecution has presented it's evidence. I am saying that after the prosecution has presented it's evidence and shared it with the defense, the judge has an obligation to spare the state the expense and throw out the case if there is not enough evidence to secure a conviction. And distributing a picture of a woman giving birth to government officials is not distributing pornography. At best, what the prosecution case can prove is a technicality, with regards to the definition of pornography, and the definition of 'distribution', but there is no pornographic network here, there is no criminal intent, there is no commercial enterprise, no one was exploited, no victim of the pornography itself, etc. So at best, the defendant can be convicted on a technicality. This is the most the prosecution can achieve. So it is up to the judge to determine whether this is all worth it.

    Now let's quote the Zambian (1991) constitution. And it is always good to remember that the constitution starts with: "We the people". Just in case any government official thinks he is a governor, not a representative.


    We, the people of Zambia, by our representatives assembled in our Parliament, having solemnly resolved to constitute Zambia into a Sovereign Democratic Republic; In Pursuance of our determination to uphold our inherent and inviolable right to decide, appoint and proclaim the means and style whereby we shall govern ourselves as a united and indivisible Sovereign State;

    Proceedings from the premise that all men have the right freely to determine and build their own political, economic and social system by ways and means of their own free choice;

    Determined to ensure the rights of all men to participate fully and without hindrance in the affairs of their own government and in shaping the destiny of their own mother land;

    Recognizing that individual rights of citizens including freedom, justice, liberty and quality [equality? - MrK] are founded on the realization of the rights and duties of all men in the protection of life, liberty and property, freedom of conscience, expression and association within the context of our National Constitution;

    Recognizing the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment;

    Pledging to all citizens the right to equal access to social, economic and cultural services and facilities provided by the State or by public authorities;

    Recognizing that the family is the natural and fundamental unit of society and should be protected by the State;

    Pledging to every citizen the right to education;

    Pledging further to all citizens the bounden duty of the State to respect the rights and dignity of all members of the human family, to uphold the laws of the State and to conduct the affairs of the state in such manner that its resources are preserved, developed and enjoyed for the benefit of its citizens as a whole;

    do hereby enact and give to ourselves this Constitution.

  17. How else can I think of this other than that Its a Premonition to a fall.
    This is typical of the 1st Republic. We had no opposition then and the rule and associated freedoms.

    But Zambians will not stay put and look at their freedoms being eroded just like that.

    Zambians are looking to even more freedoms beyond the basics achieved so far. They are looking for meaningful economic development synonymous with their freedom.

  18. Yakima,

    Thanks for that reference Prof Ndulo's paper.
    Quite interesting 54 pages!

    Unfortunately, I am prevented from substansive commenting as my laptop crashed over the weekend. Hope to upgrade to a new one this saturday when I get a chance. So by the way of the iPhone :

    It does indeed cover many areas we continue to touch on. I particularly found the bits on the constitutional making process very useful.

    The only problem of course is that it suffers from the Wangari Maathi problem - failure to address the HOW. The advice is good to a willing govt. Unfortunately, how to get African govts to take the advice is the most challenging issue.

    It also does suffer from the Dambisa Moyo problem - failure to appreciate the distiction between proximate and fundamental causes. I think constitutions are useful for redistributing de-jure power, but the problem is ultimately how do we use the process to change de-facto power distribution.

    To be fair to Prof Ndulo, these are much more economic and political science questions.

    I have additional quibbles on decentralisation and is ideas on elections. Also I thought the SAP discussions could be more nuanced.

    BUT in general there are some great themes in there. When I have time (and a laptop) perhaps we can extract some four or five topics for broader discussion. Certainly worth reading and building on.

  19. Musonda,

    I think you are very confused as to the legality of advocating in favour of communism or any other political viewpoint in the USA. Perhaps you can explain why these people have not been swept up by Joe McCarthy's anti-communist crusade?

    Certainly the US is insanely litigious -- at the civil level where one is suing for monetary damages. Criminal trials are much much harder to pull off because we do have laws against malicious prosecution, and the verdicts arrived at by citizen juries unless the defense requests a bench trial (and most lower court judges are elected, not appointed). There are also significant double jeopardy rules in criminal trials which mean that once you are acquitted of a crime, that's it, you are done, and the prosecution has no right of appeal. Anyway, you are welcome to defend the Zambian legal system as far as I am concerned, just please don't spout nonsense about legal mechanics and freedom of the press in other countries if you don't actually know.

  20. From the Associated Press, 4/9/09:

    Appeals court rules against Ashcroft in 9/11 case

  21. From Huffington Post: Chevron's Dirty Tricks

    Both a good example of the lengths extractive industries will go to avoid their responsibilities under the law, and what it takes to be a responsible jurist in the face of such pressure.


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