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Friday, 5 August 2011

Banda's parentage : where does the burden of proof lie?

Mazunga Mwiba ("The Citizen") reflects on the saga surrounding the MMD presidential candidate :
To say why didn’t Rupiah’s critics bring the issue in 2008 when he stood as a republican president is like putting a theory that; “since I wasn’t caught when I stole last year, so why should I face litigation today when you have suspected me of stealing”.Breaking the law with impunity without being questioned or caught does not warranty you from future prosecution when you are caught or suspected of having committed the same crime as previously. So whether or not no one questioned Rupiah’s candidature in 2008 is immaterial now as long as he has a case to answer....[but] neither is it in the hands of Rupiah to prove that his parents were Zambians because the rules of natural justice demands that he who has a cause against someone, need to prove his case with concrete evidence either beyond any reasonable doubt if it is a criminal case or on a balance of probability if it’s a civil case.

Granted this article was written before the latest PF action to try this in our courts. So some of the points raised in his article have been answered. However, the question of burden of proof still needs clarity. It seems to me the post conflates two different questions.

If the question is "did Rupiah commit perjury in 2008" then it is very clear the burden of proof lies with PF.

If the question is "is Rupiah eligible to stand in 2011" the burden of proof lies with Rupiah Banda and the ECZ. It is well known by all Zambians that Mr Banda was born in Gwande in Zimbabwe. He visited there and was happy to say so. There's also emerging incontrovertible evidence that Mr Banda's mother and father were Ndebele and Malawian respectively. The questions all well meaning Zambians need to ask are as follows :

1. What evidence is Rupiah Banda going to produce to show that he is eligible to run in these elections?
2. What evidence is the Chief Justice going to accept as the Returning Officer?
3. How are all presidential candidates demonstrating that they are eligible to run under Zambian law?

All Zambians remember the famous case of Prof Clive Chirwa. He was denied to vie for the Zambian presidency because he had lived abroad for 20 years. These and other requirements are used all the time to dissuade people from contesting. The founder of this website is about to turn 32 years old this month. Under Zambian law he will never be eligible to run (not that he has such ambitions). Why is that requirement more important than the parentage clause? [Incidentally, I would humbly submit that I know many Zambians aged below 35 who can run the country better than some of the 17 candidates who have stepped forward - but that is another topic - we have touched on this before - see the article : Constitution of Zambia (Amendment) Bill, Part IV].

Many of our laws are quite foolish, but these are the laws we have. The questions they raise are therefore very important questions. These are also not partisan issues. They go to the very heart of our institutions. Regardless of the motivations by the PF, the issues raised are important and needs to be dealt with in a transparent matter. We also need to be clear on the burden of proof. 


  1. Unfortunately this has been the never ending horror story of some banana republic called Zambia. We will never be out of this constitutional and legal mumble jumble if we continue having dishonest people as leaders of Zambia. This issue of 'Zambian-ness' or the lack of it would have long been settled if the successive govts, Zambia has had, were serious with drawing up a well thought out constitution. Instead they were/have all been preoccupied with coming up with a document that served their short-term narrow and selfish interests. Kaunda, Chiluba, Mwanawasa, and now Rupiah Banda have all been a dishonest cabal when given the honour to come up with a new constitution. I am afraid it will take an 'Adult' to allow 'Zambians' to come up with a document that will stand the test of time. After all only about 99.99% of so called 'Zambians' really qualify for the office of President (Remember it is stated that both your Parents must be Zambian by birth or descent!). Blame it, on the self serving legal quacks in Zambia! Honestly,you would expect the so called learned people to know that Zambia only came into existence on 24 October 1964. And only a few that started getting Zambian birth certificates in 1975 can swear to their Zambian-ness to the exclusion of the majority of their parents! Sata, Hichilema, Milupi, Banda, Chipimo etc have no evidence that they or/and their parents are Zambians! Neither they nor their parents have Zambian birth certificates. For all I care, they can sue each other over their nationality if they so choose but there is no well read judge who will be able to make sense of the rubbish we call our constitution. 47 wasted years of so called independence! Zambia has been a big dissappointment! I will, however, continue to 'hope'! One day, just one day, Zambia will have a 'constitutional father' who future generations will be making reference to with admiration! How I wish I could live for the next 100 years just to see how people will look at the Presidency of Kaunda, Chiluba, Mwanawasa and Banda. Will it be Wow or uneventful? Will they be remembered for the wrong/right reasons? We are still waiting for that adult in that 752 600 expanse we call home!

  2. Good response Frank. The world over, bad laws are a recipe for anarchy. The useless leaders hope for chaos to ward off competition from other contenders and to load it over the citizenry.

    But here is another twist to this episode: A person who is sincere about his promise to have our ill constitution rewritten cannot use its flaws to expedite his personal cause at the expense of others. I think it’s being very childish to condemn an instrument while using it for the unjust cause. Where is the moral obligation? Is it to the words written on paper or is it to the ethical demand of the heart?


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