23 February 1998


Editor demands his rights

Incident details

Fred M'membe



(MISA/IFEX) - On 17 February 1998, Fred M'membe, editor-in-chief of "The
Post" demanded that parliament refer the contempt case against him to the
Director of Public Prosecutions (DPP) to decide whether he (M'membe) should
be prosecuted. M'membe was replying to a letter from parliament which sought
his comments on deputy speaker Simon Mwila's ruling that the "Post"
editorial of 16 January entitled "Useless House" was contemptuous of

**Updates IFEX alerts of 23 and 28 January 1998**

In a letter to the Clerk of the National Assembly dated 17 February (the
entire text of which is included at the end of this alert update), M'membe
stated that the only guarantee for any semblance of justice would be if the
matter was referred to the courts. He argued that "from the comments
reported to have been made by the deputy speaker, we believe there is...no
attempt to show any...impartiality...We demand that for the sake of justice
this matter be referred, in writing, to the Director of Public Prosecutions
(DPP) in accordance with Section 27 of the National Assembly (Powers and
Privileges) Act so that if they decide, they can bring the case before the
courts of law where at least, though there might be no impartiality, there
will be some pretence of it and both sides can be heard." M'membe observed
that parliament, through the Standing Orders Committee, appeared to be in a
hurry to dispose of the case, a fact which had caused a number of procedural
errors. It had not, for instance, stated the precise charge to which he had
been asked to respond, it had not provided him with a copy of the deputy
speaker's ruling, it had not specified which Commonwealth precedents this
ruling had relied on, nor had it indicated whether the ruling itself left
any room for the standing orders committee to make any findings of its own.

M'membe maintained his criticisms against parliament included in the 16
January editorial, arguing that the legislature, in contrast to its
performance during the one party era, had failed to impose a system of
checks and balances on the executive branch of government. He catalogued a
long list of parliamentary failings, including the passing of the 1996
constitutional amendments, the intimidation of ruling party back benchers
for their criticism of the parliamentary front bench, the enactment of the
1993 state of emergency, and the imprisonment without trial of "Post"
editors in 1996. He maintained that "whatever punishment is imposed on us,
may they rest assured that upon its completion they will have to face us
again writing for the same causes with even more determination, tenacity
and valour....We will continue to use our pens as best we can to reform
parliament and other institutions of the state so they can fulfill their
historic roles and improve the governance of our country."

Background Information

On 28 January, National Assembly deputy speaker Simon Mwila ruled that the
16 January editorial published in "The Post" entitled "Useless House" was
contemptuous of parliament. On 20 January, ruling Movement for Multi-party
Democracy (MMD) parliamentary members demanded M'membe's arrest over the
editorial, which had stated that the Zambian parliament had rendered itself
"useless" and that some of its members were "spineless."

February 17, 1998

The Clerk of the National Assembly,

National Assembly,

Parliament Buildings,

P.O. Box 31299,


Dear Sir,

I refer to your letters reference no. NAS/39/12 of January 30, 1998 and no.
NAS/7/35 of February 4, 1998 and wish to thank you for the kind gesture of
extending the time within which to reply by a further 14 days. While
thanking you, I wish to however bring it to your attention that we still
strongly feel that there is some indecent haste about this issue. The
principles of natural justice entail that the other party be heard. The
hearing of the other party does not only mean extending the time as your
Standing Orders Committee has done. It also means that the precise charge is
explained clearly to the other party so that they know what it is that they
have to answer for. Even if we reported on the Deputy Speaker's ruling, it
is still incumbent upon yourselves to provide us a full copy so that we can
know what it is exactly that is alleged against us.

This would also have afforded us the chance and opportunity to see which
Commonwealth precedents, if any, the Deputy Speaker is reported to have
relied on and to also see whether the language of the ruling leaves any room
to the Standing Orders Committee to make any findings or the ruling is
itself a final finding to be adopted by the Standing Orders Committee. We
would like to know which portions of the editorial opinion are thought to be
offensive and why.

In our letter of February 2, we raised the issue that your Parliament has
previously acted illegally against us by indefinitely detaining us contrary
to the clear provisions of the law and [that] redress was only [found]
through the High Court. In your letter of January 30, 1998 you state in the
fourth paragraph that the purpose of your letter is to request us to submit
any comments we may have on this matter to enable the Standing Orders
Committee to arrive at a just resolution of the matter. Our contention is
that Parliament, as composed today, cannot act with any sense of justice in
relation to us. The previous conduct clearly shows this. For there to be
justice, even in a contempt case, there must be at least a semblance of
impartiality. From the comments reported to have been made by the Deputy
Speaker, we believe there is even no attempt to show any slight
impartiality. To the contrary there is a thinly veiled threat that
Parliament is the Alpha and Omega.

As sometimes stated, for the perception of justice an impartial judge giving
the perception of partiality is totally useless compared to a partial judge
giving a semblance of impartiality. As to the alleged contempt, if that is
the offence, if it was not committed in the face of Parliament and no threat
is posed to the institution by not acting immediately--which is no longer
possible in any case--we demand that for the sake of justice this matter be
referred, in writing, to the Director of Public Prosecutions (DPP) in
accordance with Section 27 of the National Assembly (Powers and
Privileges)Act so that if they so decide they can bring a case before the
courts of law where at least though there might be no impartiality, there
will be some pretence of it and both sides can be heard in open court.

We, however, maintain that it is a fact that the National Assembly, as
presently constituted, no longer plays its rightful role and cannot do so.
The role of the National Assembly is as a counter-weight to the executive
for purposes of effecting checks and balances in the operations of
government. But the National Assembly has since the advent of multi-party
politics consistently failed to play this very important role. This is in
stark contrast to the tradition it established during the Second Republic.
It has become, and is as of now, an extension of the executive. It comprises
64 front benchers-- at least 24 ministers and 40 deputy ministers and seven
members nominated to represented the executive. The proportion of front
benchers is just too high to allow any meaningful debate or dissent. It is
impossible to pass a special resolution. Moreover when backbenchers attempt
to question government policy they are ordered to resign as recently
happened when the Minister of Finance called on backbenchers who took issue
with the budget to quit. Thus debate is effectively stifled and backbenchers
cannot express the views or advance the interest of their electorate.

All legislation and debate is on, and is initiated by, the executive.
Private members motions are rare and even when tabled they are quickly
defeated by the large front bench combined with MMD back benchers with an
eye to the front bench. The National Assembly has effectively been rendered
a rubber stamp. And this is numerically beyond dispute. There are many
examples of specific instances when Parliament failed to play its role. The
1993 Zero Option state of emergency. This emergency was overwhelmingly
supported by the National Assembly. But subsequent attempts to prosecute the
accused in the courts of law totally failed for lack of evidence. Yet
Parliament saw enough justification for a state of emergency. This is a
clear case of it being used to rubber stamp decisions of the executive
without questioning.

This clearly shows how the National Assembly has been used to curtail the
liberties of innocent citizens for no reason. This is [a] clear illustration
of how Parliament was duped into following a political scheme of President
Frederick Chiluba. Parliament unanimously re-instituted the Public Order
court after the Supreme Court had suspended parts of it for being inimical
to a democratic set up. The effect of the amendment was in fact to make
holding of public rallies difficult for opposition while the ruling party
could hold a rally at will. Former Malambo UNIP member of parliament Major
Wezi Kaunda laid on the table in Parliament documents showing a conspiracy
to assassinate former Zambian president and opposition UNIP leader Dr.
Kenneth Kaunda should he show signs of bouncing back to power. He was
threatened with arrest. At no time did Parliament attempt to discuss or
establish the reality or otherwise of the threat that was faced by this
citizen of the Republic of Zambia.

If any further demonstration of the partisan nature of the National Assembly
is needed then it is to be found in the recent debate pertaining to the vote
on the office of the first President. Members of Parliament distinguished
themselves in shrilly calling for cutting off support to Dr. Kaunda even
though the vote was to a state office and not an individual. The manner in
which our own case, Post Newspapers was handled by Parliament again shows
crass disregard for the rule of law. Post editor- in-chief and managing
director Fred M'membe and managing editor Bright Mwape were indefinitely
detained, again at the instigation of the executive. Even the members of the
Standing Orders Committee were predominantly from the executive. The 1996
constitutional amendments was a classic case of the National Assembly rubber
stamping an decision of the executive without question. The decision to
amend the constitution in the manner that has led to the present crisis was
that of the executive. Without any critical input, Parliament readily agreed
to enact a constitution against the wishes of the people as expressed in the
Mwanakatwe Constitutional Review Commission report. It is clearly the case
that Parliament has failed to act as a check on the executive.

There is not the slightest doubt that decisions are made for Parliament by
the executive. The suspension of Dr. Ludwig Sondashi, Solwezi Central
National Party member of parliament, for instance, from the National
Assembly was a decision made outside the House. It is a fact as already
illustrated that Parliament is a rubber stamp for executive decisions. But
to keep this whole institution of rubber stamping costs money--a lot of
money--for this poor country. The executive would be cheaper to run without
Parliament. It is a fact that Dr. Robinson Nabulyato is too old for the
position of Speaker of the National Assembly. For over half a year now he
has not been seen in public even some members of parliament were asking
where he is. It is a fact that Mr. Simon Mwila, the Deputy Speaker is an
unknown, he is not a Nabulyato or Sikota Wina. Outside Kasama nobody knows
him nor what he has done to deserve the post. This perhaps is a case of
Second Republic type tribal-balancing. There is not the slightest doubt that
Mr. Mwila is partisan. He is an MMD member of parliament unlike Nabulyato
who was not. His decisions over Sondashi and Dr. Mutukwa show his
partisanship. Prima facie he is not independent and cannot be, he is a
member and leader of the MMD.

Three members of parliament were forced to resign from government in 1994
on drug trafficking allegations and these people, including Roan MMD member
of parliament Mr. Vernon Johnson Mwaanga, a self confessed drug trafficker
(see attached confession under his signature), are still in Parliament
without any questions being raised about their presence in the honourable
House. These are not honourable enough even for Mr. Chiluba to re-appoint
them to his cabinet.

The Minister of Finance, Mr. Ronald Penza, explicitly stated in the House
that he would not channel constituency funds through the members of
parliament because the money was pocketed (misappropriated) when so
channeled. Penza was not ruled out of order nor was he asked to withdraw the
statement so it stands even in the records of Parliament. Honourable men and
women who pocket public funds for their poor constituencies! Chingola MMD
member of parliament Dr. Ladislas Kamata was arrested for alleged drug
trafficking. His case was withdrawn in unclear circumstances.

The fact that a gratuity of K30 million each was promised to members of
parliament of the last House is a fact. Mr. Chiluba had to call a meeting in
Kitwe to formally withdraw the offer. This again is on record. You will no
doubt agree that no member of parliament is ordinarily entitled to that
amount as gratuity and even if we were to ask how it was arrived at, there
would be no reasonable response--that is why the President who first offered
it withdrew it with ease. This really tarnished the image of Parliament and
in the subsequent uproar it was termed "day light robbery" by other
observers. We note a certain interest in members of parliament since the
publication of the editorial to discuss more, debate more seriously and
protect the integrity and honour of parliament as recently evidenced when a
committee refused to pass certain names for a regulatory body saying if they
did they would be confirming that they are a rubber stamp.

We consider this a healthy off-shoot of our editorial and would encourage
the house to persist on this path and remain mindful of its pivotal role in
the scheme of things and exercise its mandate as fully as it sought to in
the second republic. That is the crux of our concern: that parliament should
play its rightful role so that we have a balanced state and not one
dominated by an arm of government unduly. It was parliament's unflinching
commitment to its role that saved this country from certain disaster in the
second republic. It can once more save this country from disaster in future.
These are some of the irrefutable facts on which we based our opinion--more
will come out in an impartial court of law. We do not, however, believe that
by punishing us or trying to humiliate us in whatever way for the alleged
contempt of the House, the Speaker and Deputy Speaker, the MMD dominated
Parliament should be moved by the belief that it will deter us from doing
our very best to improve the workings of our country's institutions of the
state. Although we know MMD politicians' cruelty and lack of sensitivity for
the humanity of those perceived, real or imaginary, to be their political
opponents, we are ready for whatever punishment Parliament has decided to
unleash on us--we were illegally thrown in prison by the same Parliament
hardly two years ago.

Whatever punishment is imposed on us, may they be rest assured that upon its
completion they will have to face us again writing for the same causes with
even more determination, tenacity and vigour--as we did, and have continued
to do, after our release from their indefinite imprisonment. We will
continue to use our pens, as best as we can, to help reform Parliament and
other institutions of the state so that they can fulfill their historic
roles and improve the governance of our country. We have done our duty as
citizens of this country and it remains to posterity, and not Mr. Deputy
Speaker, to judge us. We sincerely believe referring the matter to the
DPPwould be a more just approach and the only legal way unless of course the
mind of Parliament is set and the proceedings are meant for the purposes of
window dressing only.

Yours faithfully,

Fred M'membe

Editor-in-Chief & Managing Director


Media Institute of Southern Africa
21 Johann Albrecht Street
Private Bag 13386
misaalerts (@) gmail.com
Fax:+264 61 248016

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