After the Trial: A Case for Tort Reform in Zambia.

Now that reason has prevailed in the frivolous case, against Zambian journalist Chansa Kabwela., it is perhaps time to reflect how we got to this point.

I found BBC ‘s Jo Fidgen’s comment after observing the whole charade most telling;

“It seems to me that Zambia's social conservatism is in tune with a Britain that no longer exists.” she said.

Against strong attempts to avoid drawing a post hoc ergo propter hoc conclusion, I wonder -

Was there ever a time, when Zambia’s social conservatism was ever in tune with Britain?

It seems to me that her majesty’s forgone empire has always cast that awful spell in all her former dominions that taught even coerced her subjects - to present the appearance and behavior of a British social system.

In Zambia as in much of the former colonies, keeping up that appearance is still far more important than the substance of daily life.

So sacred is the legacy of that British law as it was handed down, that we can not bear to amend it in the slightest, to right any modern day wrongs. Even draconian laws that were specifically conceived in the colonial period to enforce public order, in the face of legitimate insurrections for freedom by the natives are preserved and still applied in a present day independent Zambia.

The case of the “porn journalist” poignantly displays the dilemma of a present day Zambian stuck in a legal system framed for a different time.

The actual victim in this case, the wronged woman whose baby and privacy were fatally assaulted, can not sue for redress. There is no legal remedy for her against a vicious affront perpetuated by the hospital and the state.

In the United Kingdom  the NHS constitution provides remedies to make a claim for judicial review for anyone who has been directly or indirectly affected by an unlawful act or decision of an NHS body. If a claim is for just, compensation is paid out. While the British system has moved on, the Zambian system still returns a fatal attraction to the fidelity of colonial law.

I think  time has come, for Zambian legal minds to write and enact our own laws and craft a legal system that will address the challenges of modern day Zambian lives.  It is time for Zambian legal practitioners to give up those white wigs made from horse hair that look so out on place on an African head. My I suggest the current Zambian penal code and Tort law as the starting point.

The Right to dissent.

“If the whole world was of uniform opinion but one, the world would be no more justified to silence that one voice than he if he had the means to silence the world.”

And thus came to Columbia University the Iranian President….
Mr. Ahmadinejad strode onto the stage in a packed auditorium, smiling slightly. Before he sat down, he held up his hands to the crowd, to some applause.
He then gave a speech that meandered from topic to topic, from science and religion, to creation of human beings, and the misuse of wisdom. But it was during the question-and-answer session that he was confronted with some of his most controversial positions.
He said that as an academic, he questioned whether there was “sufficient research” about what happened after World War II. “We know quite well that Palestine is an old wound” for 60 years, he said at one point, in the earlier part of the question-and-answer portion.
“We need to still question whether the Palestinian people should be paying for it or not.”
He was also asked to answer directly whether he or his government seek the destruction of Israel. He did not. But he said that to solve the “60-year old problem,” “we must allow the Palestinian people to decide on its future itself.” (nytimes).

There are now fears of a backlash against Columbia University especially because Mr. Ahmadinejad used the platform to extraordinary effect even receiving loud applause in a country that has branded him a leader of a terrorist state. Mr. Ahmadinejad seized the opportunity to highlight the unresolved fate of Palestinian refugees; he also explained the Iranian position and intention of its nuclear ambition.

Whatever the pit falls, it is clear that free expression especially the right to present a dissenting opinion is indeed - a right and benefit all governments must support especially African governments.

Very costly seats!

From the conspiracies and jealousy sparked by Miriam and her brother Aaron in the earliest Jewish establishment when Zippora wife of Moses took a seat of prominence (in the leadership of the establishment causing the influence of Miriam, and her brother Aaron to wane) to the arrest of Rosa Parks for refusing to give up her seat on a segregated bus – people of color have paid a very high price for a seat at the table of prominence.

So much time has passed since those infamous events, so why would thousands of black people in the US, hold protests all week after a recent event under a tree?

The tree on the Jena High School grounds is known as the "white" tree where only white students congregated. When a black student asked the school principal if he could sit under the tree; he was told that he could sit anywhere he liked. The day after a group of black students sat under the tree with their white friends, three white students hanged three nooses in the tree as a warning to black students. The three white students were suspended, however the superintendent, who is white, diminished the incident, calling it "a youthful stunt" and overturned the suspension.
Two months later, a white student in support of those who hung the nooses got into an argument with six black students, which led to a fight in which the white student suffered a bruised face. Although the white student was not hospitalized and even attended a school function later that night. The black students were charged with attempted second-degree murder and conspiracy. One of the students Mychal Bell, 17, was convicted of aggravated second-degree battery, which could have led to 15 years in prison. But his conviction was thrown out by a state appeals court that said he could not be tried on the charge as an adult because he was 16 at the time of the beating.
Today, a judge denied a request to release the teenager while an appeal is been reviewed by a juvenile court, effectively denying him any chance at immediate bail. He has been in jail because his bail was set very high at $ 90,000.

Who would imagine that a seat under this Jena high school tree, would cost six blacks students more than 20 yrs in jail?

Such events underscore the importance of celebrating those of our people like Prof Clive Chirwa who have secured through their courage, endurance and exceptional wisdom a very costly seat at the table of prominence in the western world.

Zambian democracy under scrutiny.

"I have read this to mean if 51% of the population elect a Member of Parliament, genuine democracy means that that person should reflect the will of the people, and not vote according to his will. Assuming my interpretation of your position is correct, then there are indeed areas of difference. The question of whether the electoral system is democratic is divorced from the question of whether that ‘democratic system’ correctly ensures that the person who is elected reflects the will of the majority." Cho

The way this scenario plays out in Zambia, evokes the most puzzling doubts about whether democracy is really still in play – I may be too simplistic but what would you think if –

You went to dinner in a group and after a discussion between the choices of a steak or seafood restaurant. The group finds that the majority prefers the steak restaurant; they then decide on a menu and choose a representative to make the order. But because the representative feels seafood may be a better diet for his health, he orders seafood for the group and brings the bill along for the group to settle.

Does the order still represent the will of the majority?

During general elections, candidates present themselves under one party and sign a social contract with the electorate to undertake specific development programs. However, after securing the initial votes, some MP's switch parties or deliver programs usually at the bottom of the electorate's priority list.
Results of by-elections show a much lower voter turn out even when the same candidate wins under a different party.
Besides the financial loss suffered by the electorate forced to fund another election, do low turn outs also convey a loss of the majority support or will?

Is Political freedom absolute?

My good Zambian blogger Cho raises an interesting point of view in his recent post
http://zambian-economist.blogspot.com/2007/09/quote-of-week-2nd-edition.html discussing recent political vacillations in Zambia.

However, in reaching that conclusion, we also have to accept that Mr Msika actions are part and parcel of democracy - the ability to freely choose which organisation you wish to join and even the freedom to change your mind after 48 hours! The challenge for political parties, is how to build parties that are resilient in face of this politics of poverty. Cho

Rather than justify such behavior as a preserve of a democratic system, I think this presents an opportunity for Zambians to right the cause of this expensive practice- that is a gross misunderstanding of democracy and the subsequent failure to define a political ideology or position.

The word Democracy comes from two Greek words: demos, meaning "the people," and kratein, meaning "to rule." These two words are joined together to form democracy, literally meaning "rule by the people" (Pious). There are democratic systems around the world functioning satisfactorily without the multitude of political factions (I choose to not to call them parties) that we have in Zambia.

In most systems, representatives form an independent ruling body for an election period charged with the responsibility of acting in the people's interest, but not as their proxy representatives—i.e., not necessarily always according to their wishes, but with enough authority to exercise swift and resolute initiative in the face of changing circumstances.

How diverse are the interests of the Zambian people, to justify so many political factions?

Not so diverse, I submit that, the average Zambian wants no more than two political entities. One to govern based on a popular vote the other to keep in check, the governing party to avoid excess and abuse of national resources.
In most developed democratic systems there are two political ideologies, conservative and liberal, Right and Left or like, I to put it - those that can govern and those that need to keep talking about how they would govern.
If Zambians demanded every politician or political party to define themselves in these more restrictive terms and not the current broad almost unlimited terms, we would as a nation save our meager financial resources been wasted on;
· The printing of multiple ballot papers representing each of the many political factions and candidates in general and by elections.
· Forced by- elections due to defections.
· The attendant high costs of running a parliament filled of several different political factions.
· And avoid the risk of violence having so many political factions generates.


The United States, a major driving force of the spread of democracy, did not start off with that many parties. Though composed of diverse immigrants from the beginning, the first two political parties in the United States were the Federalists and the Anti-Federalists. These later evolved into Democratic and Republican parties, the two major political ideologies. Further, in case one does not agree with either platform, there is the option of independent. However, there is only one independent senator in the US congress - Joe Lieberman, who was actually a democrat but was forced to run as an independent because of his support of the Bush position on the Iraq war.


Political freedom is not absolute, Mr. Msika or any other Zambian politician’ ability to freely choose which organization they wish to join and even the freedom to change their minds after 48 hours ends at the point where that freedom begins to cost Zambians tax money that could go towards national development projects instead of been wasted on unnecessary by - elections.

The high price of Dissent

Archbishop Pius Ncube's announcement of his resignation, which he made here today in Bulawayo at the Makokoba Cathedral, was one of the most bitter moments yet in our painful struggle for justice in Zimbabwe. We have lost a champion, and we are the poorer and weaker for it.
It was not an unexpected blow. Ncube broke his Roman Catholic vow of chastity with a married woman. When this became public he had no alternative but to go.
He was, of course, the victim of a government-inspired honey trap. Mugabe had grown impatient with him. Ncube had never minced his words when it came to denouncing the Zanu-PF regime for what it was. He bravely exposed its appalling record on human rights. The First Post.

In Zambia, information Minister Mike Mulongoti recently warned public media journalists to avoid criticizing the government. The case of archbishop Ncube may be multi facted - however will governments in Africa ever face up to any criticism without exerting retribution on those that dare speak up?