Does Law Rule in Zambia? The vile wars of Banguanaland: Let me lament for the beloved And compose a dirge to her plot Refugee camps stripe my beloved Just like the skin of a leopard And the world believes it is free! Poverty, like locusts, invades, Ballots are nothing but a ruse While laws only favor the rich! BRIEF INTRODUCTION This chapter introduces the Rule of Law in Zambia and answers the question of whether law rules in Zambia. MAJOR THEMES: Politics Law Constitutionalism ≈ Democracy Rule of Law Separation of Powers §11.1 Law is Politics aw is part of politics. Politics is about who gets what and how in a certain political order. To do so, there must be the Rule of Law. In fact, “Government cannot live long unless its L foundations are laid on principles of justice.”1 The first principle of the Rule of Law is that everyone is equal before the law. “It does not matter whether one is a wealthy professional, unemployed, or a member of the political bureaucracy; one is subject to the same laws.”2 Maiko Zulu has aptly put it, “the law knows no personality,”3 because it should not. The second principle of the Rule of Law establishes what law should do. This principle means that there is an arbitrary set of rules by which people ought to be governed. In the application of the Rule of Law the governor and the governed, must in principle, operate at the same level and must be governed by the same rules. 1 Poultney Bigelow, White Man’s Africa (New York & London: Harper & Brothers Publishers, 1898), p. i 2 1 Shirley V. Scott, International Law in World Politics (New Delhi: Viva Books Private Limited, 2005), p. 13 3 Zulu remarked when Danny Mwikisa, a renowned Zambian singer who rose to fame with the hit song Ichiloto Ukuwama, was sentenced to four years imprisonment for theft of K26 million in 2007. Page §11.2 Crimes of Poverty In developing countries, there exists an economic chasm between the governors and the governed. The governors are said to belong to an elitist club while the majority of the ruled grope into the very jaws of poverty. The ruling class, or the politicians, usually in power, enjoys all the economic benefits of the land while the ruled are eluded by wealth. They struggle to earn and keep a living and are subjected to oppressive and demeaning working conditions. Most are unemployed and are used as capitalistic pawns. Capitalism needs them as operators and propellers of the free-market system that keeps the elites comfortably in power. In such a system, law is said to perpetuate disparities that keep the poor where they are and elevates the rich and powerful to an even loftier glory. To survive, the poor tends to commit what are known as crimes of poverty. Poverty, and the subsequent crimes arising from it, undermines the Rule of Law. As a Zambian statesman has succinctly put it, “An empty stomach knows no law.”4 Muhammad Yunus, founder of Grameen Bank and winner of the 2006 Nobel Peace Prize, argues: Poverty is perhaps the most serious threat to world peace, even more dangerous than terrorism, religious fundamentalism, ethnic hatred, political rivalries, or any of the other forces that are often cited as promoting violence and war. Poverty leads to hopelessness, which provokes people to desperate acts. Those with practically nothing have no good reason to refrain from violence.5 He adds that nations whose people are brutalized by poverty find it easy to resort to vices like crime or war.6 In Zambia, the Rule of Law must move in tandem with the fight against poverty. People are reluctant to obey good laws when such laws bring them no benefit. The Good Lord would argue: “What does it profit a person to gain the whole world and lose their own soul?”7 The poor would answer, what does it profit a poor soul to obey all the laws and still lose this world? In December 2002, the Quebec National Assembly adopted the Act to Combat Poverty and Social Exclusion (Poverty Act), becoming the first jurisdiction to so in the world. The Poverty Act deals with the “future of the poor”8 and provides a “model of participatory democracy.”9 Law has, thus, a prominent role to play in the fight against poverty. Fighting poverty itself contributes to the “promotion and protection of human rights, and more specifically of economic and social rights.”10 Moreover, the Rule of Law means that government is bound in all its actions by fixed rules. These rules should be “announced beforehand so that it is possible to foresee with fair certainty how authorities will use its coercive powers in given circumstances and to plan one‟s individual affairs on the basis of this knowledge.”11 The principle of the Rule of Law may not always match the realities of the legal system, but it is necessary to set parameters along which certain behaviors may be contained. 4 Zulu, Memoirs of Alexander Grey Zulu, p. 290 5 Muhammad Yunus, Creating a World Without Poverty (New York: PublicAffairs, 2007), p. 105 6 Ibid. 7 Mark 8:36, “For what does it profit a man to gain the whole world, and forfeit his soul?” (The New American Standard Bible) 8 Lucie Lamarche, “The „Made in Quebec‟ Act to Combat Poverty and Social Exclusion: The Complex Relationship between Poverty and Human Rights,” in Margot Young; Susan B. Boyd; Gwen Brodsky & Shelagh Day, (eds.) Poverty: Rights, Social Citizenship, and Legal Activism (Vancouver, BC: UBC Press, 2007), p. 139 9 Ibid. 2 10 Ibid. 11 F. A. Hayek, The Road to Serfdom (London: G. Routledge, 1944), p. 39 Page §11.3 Balance of Powers In a perfect world, there would be no power imbalances as all the people would be equal on the basis of birth or nationality. However, in the real world, society is highly imbalanced. The rich are more powerful than the poor, and those who govern are more influential than the governed. The Rule of Law brings balance to society. The Rule of Law limits the extent to which power can be used as leverage against the weak and the poor. In principle, it gives the weak of society the same access, privileges and rights the strong of society enjoy. By ensuring that everything that is done officially be according not only to law, but to well-defined and popularly enacted law, the Rule of Law puts premium on equality and, in principle, strengthens the ideal of equal benefit before the law. The Rule of Law preserves democracy. “History has also shown that countries which, come out of violent conflicts, often face the same problems.”12 Thus, war-like behavior produces war- like effects. Nations that began on a path of violence have followed the same course to their own peril. The Rule of Law safeguards democracy and ensures that the benefits of hard work and diligence are not negated by the pulsations of war. To guarantee the balance of power, the Rule of Law must entail three things: the presence of the Bill or Charter of Rights, an understanding and accessibility to the law, and independence of the Judiciary. Part Three of the 1996 Constitution of Zambia constitutes the Zambian Bill of Rights13 - which contains twenty-one articles ranging from Article 11 on Fundamental Rights and Freedoms to Article 32 on Interpretation and Savings. However, the Rule of Law is futile if citizens cannot understand or access the law. “Unless people understand and know [the law‟s] provisions,”14 the Rule of Law will have no benefit on the common person. This is the reason why citizens should insist that a constitution to last the test of time is enacted with the people‟s absolute consent. Philosophically, law must by itself be just to guarantee the protection and safety of the members of society. A good law is defined not by what the law is, but by why it was enacted. A bad law, that is a law that discriminates or gives unnecessary powers and privileges to one sector of society, say to political leaders, cannot be good even if a sane and well-meaning Judiciary interprets it. However, with an independent Judiciary, laws, good or bad, may serve as an umpire for the cause of justice. In a democratic society, law must be above men. In Zambia, this must be the case: “The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.”15 Putting it simply, the Rule of Law is founded on the premise that whatever is done officially must be done in accordance with law. In the charge to his most noble knights, King Arthur of the Kingdom of Camelot played by Sean Connery in the First Knight says, “Let all the citizens see that the law rules in Camelot.” This was to be the case even if it had to do with Lancelot himself,16 that great deliverer of Queen Gunevere, the wife of King Arthur and Lancelot‟s future lover! 12 Mwaanga, The Long Sunset (Lusaka: Fleetfoot Publishing Company, 2008), p. 24 13 Or the Protection of Fundamental Rights and Freedom of the Individual 14 3 Mwaanga, supra. 15 Dice, as quoted in Charles Mwewa, The Burden of Zambia, p. 4 16 Lancelot was played by Richard Gere. Page To actualize this rule, the Judiciary must operate independently of the Executive.