Lewanika and Others v Chiluba (1998): The most significant court ruling in Zambia’s 50-year jurisprudence

Zambia has seen no court case full of stuff only fit for reality TV than the case of Lewanika & Others v Chiluba (1998). Mention it. And you would most probably find it there. A president who seemed to have had no idea about the identity of his father. A picture that disappeared at night only to reappear days later on the desk of a government director, doctored. The case had allegations of illicit sex, secrets and added mysteries.

It all started in 1996 when President Frederick Jacob Titus Chiluba (FJT) and his MMD government bigwigs, Miyanda and Sata, hatched a clever plan to prevent Kenneth Kaunda (KK) from contesting the 1996 elections. I must note here that Miyanda denies such characterization. Nevertheless, their plan involved an amendment to the constitution to restrict the presidency only to those whose father and mother were “Zambian by birth or descent”. KK complained that this constitutional provision was unfair and was aimed at stopping him. Apparently, KK’s star was rising again after the 1991 bruising defeat. “Mu cipyu”, KK boycotted the elections and urged his UNIP party to do the same. The boycott came as Chiluba’s early Christmas present.

In pushing through this constitutional amendment, Chiluba invoked Kaunda’s deep-rooted nightmare: the fact that his parents were Nyasalanders. These are the same hitches that had dogged KK even before the founding of Zambia. It was a notoriously open secret that nearly everyone knew in Chinsali that KK’s father and mother were actually not natives of Chinsali. However, KK became an influential leader of the independence movement leading up to the liberation of Zambia. In spite of this history and suspicion, KK overcame this prejudice to lead Northern Rhodesia into an independent nation of Zambia. This year, Zambia celebrates its 50 years of independence. Before and after 1964, though, friends and enemies would use Kaunda’s Malawian heritage as a weapon of convenience when their positions became threatened. Certainly, even democrat Chiluba succumbed to this temptation to corner a founding figure of our republic.

What is mostly bizarre, however, about the 1996 story is the irony buried in it. Chiluba won the 1996 elections handily, delivering a blistering defeat to Mbikusita-Lewanika, Mung’omba and Chakomboka. And then all hell broke loose. Lewanika decided to challenge the election of Chiluba based on the same law that Chiluba had originally created to bar Kaunda. Lewanika and his colleagues challenged Chiluba on the basis that he could not be president since his father “was not a Zambian by birth or descent”. The bed of thorns Chiluba had weaved for Kaunda was now getting warm for him to sleep on it. Lewanika and his friends were not bluffing – Chiluba’s father was not a Zambian and as such, he could not possibly be president of Zambia.

When Chiluba came up with the 1996 amendment, he should have known that his own parentage was more questionable than Kaunda’s. But in keeping with common human weakness, FJT probably felt that he was safer than KK. Kaunda’s father was a famous evangelist well documented in history, but Chiluba’s father wasn’t. Chiluba wanted to use this as a way to cast suspicions on KK.

During the Lewanika v Chiluba trial it emerged that on his passport applications and affidavits before he became president, FJT swore that his father was a Jacob Titus Chiluba of Chief Lubunda in Mwense. However, when filing in his candidacy for the 1996 elections FJT declared that his father was a Mr. Jacob Titus Chiluba Nkonde of Lengwe Villange in Kawambwa. This was a serious discrepancy. Another colourful figure testified, at trial, to have been Chiluba’s biological father. Chabala Kafupi claimed to have had an illicit sexual relationship with FJT’s mother Mama Kaimba. It was from this affair that Chiluba and his twin brother were born at Chibambo Hospital in what is now called Congo DR. Other witnesses, in the same case, testified that Chiluba’s father was actually a Jim Zahare from Mozambique. In the proverbial dock was a president of Zambia, whose parentage was now under legal microscope. If Kaunda’s undoing was that his father was a Malawian, Chiluba’s own undoing was the fact that there were four possibilities of his father: Chabala Kafupi a Congolese, Jim Zahare a Mozambican, and the two others Chiluba had self-declared.

How would the judges make sense of all this? Well, judges do what judges want to do. They had to come up with a creative way to settle this. In explaining their reasoning, they delved into citizenship; Cecil Rhodes’ settling into Africa; British jurisprudence and then concluded Chiluba was validly elected regardless of whether his father was the Congolese Kafupi or the Mozambican Zahare.

In retrospect, the 1998 ruling absolved Kaunda. It meant that he could have successfully filed in his candidacy in 1996 even if his father were Malawian. The outcome of this case undermined Chiluba’s original motives for barring KK just as it bolstered Chiluba’s own presidency regardless of what Chabala Kafupi had testified. Most importantly, this ruling defined for Zambia, the meaning of citizenship denied to Zambians since 1964. This ruling added the new meaning to what it meant to be a citizen.

1998 was not the last time Zambia was to hear of the Lewanika v Chiluba case, however. Shortly after the Supreme Court had rendered its decision, two controversial gentlemen: Mushota and Katyoka decided to sue Kaunda claiming that he was “stateless” since he had not applied for Zambian citizenship. As if it could not get any bizarre, Ndola High Court Judge Chalendo Sakala agreed with Katyoka and declared Kenneth Kaunda “stateless.” When Kaunda’s lawyers appealed to the Supreme Court, one of the authorities they relied on was Lewanika and others v Chiluba. They claimed that the Supreme Court had already ruled on such matters: Kaunda was a bonafide citizen of Zambia regardless of the purported nationality of his father. Lawyers also relied on the Chiluba case to assert that citizenship was conferred to people like Kaunda who were ordinarily resident in Zambia on the eve of independence. Before the Supreme Court could rule, Katyoka conceded and decided not to go on with the court process delivering a victory to KK.

Sixteen years after Lewanika v Chiluba, we seem to be facing the same challenges. President Sata doesn’t trust his vice-president Guy Scott due to his Scottish heritage. In turn, Scott does not trust Sata’s son, Mayor Mulenga Sata, due to the Malawian origin of his mother. Scott has also stated that “zayelo” Given Lubinda is probably disqualified from the presidency. But if we are to resolve these problems, we have to look to Lewanika and others v Chiluba, and realize that Scott, Lubinda, Mulenga and others like them are bonafide Zambians who satisfy all the 1996 amendments regardless of the colour of their skins. It is this powerful truth that makes Lewanika v Chiluba the most influential ruling in the 50-year history of our jurisprudence.

Elias Munshya, LLB (Hons), MA., M.Div.