Simutanda v Siame & Another (1 of 2019) [2019] ZMCC 19 (4 December 2019)

IN THE CO!NSTITUTIONAL COURT OF ZAM. BIA HOLDEN AT 'LUSAKA 1(Constitution.ai J~risdictfon, .2019/CCZ/001 IN THE MATTER OF: SECTJO. N 19 (1,1 O. F THE CONSTITUTIONAL COURT, ACT NO. 8 O. F .2016 AND IN THE MATTER OF: AILLEGED CONTRAVE. NTION OF ARTIC:LE Jl.165 fl} AND (2) (a) AND (b) . AND AR'TICLE 167 flb) (i) AND ,(iii OF 'THE CONSTITUTION OF ZAM. BIA B. ETWEEN: Fl6r>I. IOLIC \JF UIMi::llA CONSilTiJr!ON~-~~ OF ~4611 APPLICANT . AND BOZY SIMUTANDA . iJ G. DEC 201~ I~ I ATTORN. EY GENERAL . l MATT. HEWS iKAKUNGl!J SlA~)i; 0 L 0').(. 50067. LUSAKA MfOISTRY 2 ' --·~- · ··• RESPONDENT INTERESTED PARTY f Coram.~ Mul,eniga~ Muilonda and. Mu.saluke JJC on 1·6tih Oct,ober, 20'1'9 and on 4.t1h December, 2019 For the Applicant: In-person F,or the Resp:ondenit: s For th,e lnter,ested Party; . Ms. D. Mulenga Chambers Mulondiwa and o.f At,torney Ms .. M . Gene.rai's Ms. Z. Mai.pa·mbe of Messrs Mwenya . Mwitwa Advocates JUDGMENT Mulonda, ,JC, delive.recd the Jadg1ment o:f the Court Cases refer:ired to: 1. 2. Ted. Savaya. Muwowo alias Chief Dangolipya Muy,ombe v Abraham Muwowo :(:sumg in his capacity as chairman of th,e Uyombe Royal Estaib.lishment Comimi1t t e ,e} SCZ/8/ 50/2014 . Bernard Slhajilwa and 4 Otlhers v Ofher,g 2018/ CCJ004 'The Attorn,ey G,eneral and 3 J1 3. Wtllfto:rd 1Funjika v A.tto·rney G:ener:al 1(2005} ZR 9'7 Legislation refer.red to: l. 2. 3. T.he Constitu·tiom ((j)f Zamlbia~ i'{Amendment, Act No .. 2 of 2016 The Consttitutio1nat Court Act, No .. 8 of 2016 The c :Jmieifs Act, Chapter 287 of the Laws of Zambia Other works referred to: l. Blaclk"rs Law Dktio:runy (1968l Revised 4th Ed, St. Paul Minn. West Pu'lb1Iisliin;g Oo By Originating Summons brought under O. IV r.2 (2) and r.4 (5} of the Constitutional Court Rules 1(CCR) the Applicant, Bozy Simutanda , in his capacity as spokesperson for the Lungu Royal Establishment chaUenges the selection of Matthews Kakungu Siame, the Interested Party in these proceedings, as Senior Chief Tafuna of the Lungu Beop1e. The gist of tlhe matter is th at Article 165 (1) and Article 167 (b) (il and (ii) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 (hereinafter reiferred to as the Constitution as amended} have been contravened. The Applicant to this end put up six questions for our consideration, whic h we have reproduced as outlined in the Or iginating Summons, namely: ''(i) Wll,etb.er or not tlh.<e Lungu ,chi<efs or Malaila/Tabwa chiefs on 27tth April 2006 in U11e presence of the assistant director chiefs' affa.us made RESOLUTIONS to U)phold the 1957 agreem'ent fror fu.b11re S11ilcc,essfon of the Lun:gu chiefs as requited 1by Article 1,65 (l.} of the Constitution of Zambia Act. (ii} W.h:et:her 'the 1957 a,gr,eement e'Xplicitly states that the J2 senior chief Tafuna's posititon is PATRILINEAL or not as required by Article 165 (1) of the Constitution of Zambia Act. (iii) Whether or not the Mambwe Chiefs, Lungu chiefs and Malaila/Tabwa chiefs on the 4th March, 1968 agreed that chief Chinakaila is the only authority to appoint Senior Chief Tafuna as re:quired by Article 167 (b) (i) (ii) of the Constitution of Zambia Act. (iv) Whether or not the proceedi ngs of the meeting held on 29th Au gust 2018 at Sinamu lodge at Kasama was a conspiracy as require d by Article 165 ( 1) of the Constitution of Zambia Act. (v) Whether it was legal or not for the Permanent Secretary for the Chiefs and Traditional Affairs to proceed in the manner he did to recommend Matthews Kakungu Siame as the Senior Chief Tafuna without authority from Senior Chief Chinakaila as required by Article 165 ( 1) and Article 167 (b) (i) (ii) of the Constitution of Zambia. (v'i) Why the appointment of Mr. Matthews Kak ungu Siame should not be revoked as Senior Chief Tafuna for the Lungu traditional institution to enjoy privileges and benefits as r e quire d by Article s 167 (b) (i) (ii) of the Consti tution of Zambia Act. " By an application to raise preliminary issues under O. l 4A and 0 .33 r.3 of the Rules o f the Supreme Court of England, 1965 ( 1999 Edition) , dated 18th February, 2019 the Respondent raised two preliminary issues, n a me ly, that the Originating Summons did not disclose a sustainable cause of action against the Respondent and that the Applicant, Bozy Simutanda, had no locus standii. Following the hearing of the motion , th is Court ruled that all the quest ions, save question (vL did not raise constitutional issues fit for de termination by t his Court and were J3 accordingly expunged from the record. Secondly, that in view of section 11 '(2} of the Constitutional Court Act (CCA), the Applicant had locus standii. That said, this judgment relates to the surv1v1ng question, namely question (v). "Whether it was legal ,or not fo:r th,e Permanent Secretary for the Chiefs and Trad:itfonal . Affairs to proc,eed in th,e manner he did to ce,c ,ommend Matth,ew:s Kakungu Siame as the Senior Chief Tafuna without autho:rity from Senior Chief Chinakaila as required by Article 16. S P :I a:nd Article 167 (b) (i) 1(iiil of the Constitu tio:n of Zamb:ia."' The Originating Summons is supported by a n affidavit deposed to by the Applicant and dated 22nd January, 2019. The affidavit deposes that the Constitution as amended leaves a il matters of chieftaincy succession to the concerned chiefs and tribal elders. That the Chairperson of the Lungu Royal Establishment, Chief Chinakila, on 13th November, 2013 appointed Mr. Raphea! Tafuna Sikazwe as Senior Chief Tafuna and that the appointment was ratified by the Government. It was further deposed that in a letter dated 18th December, 2018 and marked as exhibit "BS 3", Mr. Micheal B. Pwete, the Permanent Secretary in the Ministry of Chiefs and Traditional Affairs, illegally recommended the installation of Mr. Matthews Kakungu Siame as Senior Chief Tafuna. J4 Submitting oraUy, the Applicant referred this Court to a letter at page 39 of the record in which he stated that the Permanent Secretary of Chiefs and Traditional Affairs contravened Article 165 of the Constitution as a.mended when he made recommendations contrary to the culture and customs of the Lungu speaking people. The Applicant further reiterated his position that tlhe Respondent acted in breach of Articles 165 and 167 of the Constitution as amended. The Applicant prayed that the application be dismissed as it lacked merit. I n opposing the mati!:er, the Respondent relied on an affidavit in opposition and skeleton arguments both filed into Court on 22 nd August, 2019. The affidavit in opposition was deposed to by Cade Chikombo, a Committee ClerJk a.n the House of Chiefs. It was stated that sometime in July, 2016 the House of Chiefs constituted a commiittee of chiefs to address the Ta.funa chiefdom dispute and that a r,eport was subsequently adopted which led to the represen tative s of tne Lungu tribe forming an electoral college to select a new Senior Chief Tafuna on 29th August, 2018. It was deposed that Mr. Mattlh.tews Kakungu Siame was selected as the new Senior Chief Tafuna by the electoral college and that JS verification documents exhibited and marked as "CC 1" were sent to the Permanent Secretary, who then added Mr. Siame to the payroll for payment of subsidies. It was further deposed that Government officials did not form part of the electoral college but were merely observers of the electoral process and that the Permanent Secfietary did not recommend the installation of a chief but facilitated his placement on the payroll in accordance with the law. In written submissions, the Respondent argued that it was the mandate of the House of Ch.refs to determine matters relating to customary law and make reoommendations to local authorities and the Government. It was contended that the House of Chiefs was within its constitutional powers when it constituted a commjttee to determine the succession dispute ln the Tafuna chiefdom. It was ernphasized that neither the Permanent Secretary for Chiefs and Traditional Affairs nor any Government agent recommended Mr. Siame as Senior Chief Tafuna. It was added that there was a statutory obligation under section 8 of the Chiefs Act to ensure that a chief was paid a subsidy to enable him to maintain the ,status of his office and to discharge the traditional ~unctions of his office .. It was therefore submitt,ed that the Permanent Secretary for Chiefs and Traditional Affairs merely exercised his statutory duty when he placed Mr. Matthews Kakungu Siame on the payroll £ollowing the recommendations from the House of Chiefs. In oral submissions, counsel for the Respondent reiterated their earlier position and emphasised that the Government did not participate in the selection of Senior Chief Tafuna, but only placed the newly installed chief on the payroll after rece1v1ng documentation of such installation. The Interested Party, Mr. Matthew Kakungu Siame, relied on his affidavit in opposition dated 15th July, 2019 together with skeleton arguments dated 9th August, 2019. He deposed that following the .murder of Senior Chief Tafuna Chizimu Chifunda, of the Lungu people of Mpulungu District, the House of Chiefs appointed a committee of chiefs to look into the succession dispute. That the said committee wrote to the Permanent Secreta ry on 30th January, 2018 with the findings and recommendations of their report on the succession dispute. Mr. Siame also deposed that following the said recommendations, an electoral college was constituted which subsequently selected him as Senior Chief Tafuna at a meeting that was attended by J7 Government officials in their capacity as observers. Mr. Siame Durther deposed that he had never been recommended or appointed by any Government official. He deposed that although the acting Permanent Secretary for Northern Province and other senior Government officials were present during the selection process, they did not participate in his selection as Senior Chief Tafuna. The minutes of the formation of the electoral college and the selection of Senior Chief Tafuna were exhibited and marked as ''MKS 2". It was added that as a result of these proceedings, Mr. Siame as the acting chief/ caretaker chief had been estopped from enjoying his constitutional privileges and benefits s ince April, 2019. By way of written submissions , the Interested Party reiterated the facts deposed to in his affidavit. It was submitted that the Government owed a duty to every Zambian citizen to ensure national unity, peace and secur ity in order to foster development in all. parts of the country inclu ding Mpulungu District. It was submitted tha t the House of Chiefs acted within their constitutional mandate under Article 169 (1), (5) (f) and (g) of the Constitution as amended when they advised the Government in JS tradition a n d customary matters. That the Interested Party, being duly appointed as Senior Chief Tafuna, w a s entitle d to full p ayment of his monthly subsidy from the date of his installation until the end of his tenure in accordance w ith Article 167 (b) (i) a n d (ii) of the Constitution as amended. It was added that the Permanent Secretary fo r Chiefs and Traditional Affairs d id n o t therefore breach the said Article when he placed the Interested Party on t h e payroll. We were referred to the case of Ted Savaya Muwowo alias Chief Dangolipya Muyombe v Abraham Muwowo (suing in his capacity as Chairman of the Uyombe Royal Establishment Committee) 1 in which the Supreme Court held as follows: " Succession in a chiefdom is by way of established traditions and customs and not personal views or wishes of particular individuals . . . we wish to add that where the tradition and customs of a group of people has a process t h at is to be followed for the selection of a chief, that tradition and custom ought to be followed." We were also referred to the case of Bernard Shajilwa and 4 Others v The Attorney General and 3 Others2 in which we interpreted the provisions of Article 165 of the Constitution as amended. Article 266 of t h e Constitution as ame n ded was c ited a s regards the definition o f a chief to mean a pe r son bestowed as chief and J9 who derived allegiance from the fact of birth or descent, in accordance with the customs, traditions, usage or consent of the people in a chiefdom. In this regard, it was argued that the Interested Party having been selected as Senior Chief Tafuna satisfied the definition of a chief and was therefore entitled to the benefits under Article 167 (b) (i) and (ii) of the Constitution as amended. It was stated that the Respondent's actions of placing the Interested Party on the payroll could not be said to have interfered with the autonomy of the Lungu chieftaincy or tradition. We were urged to find in favour of the Interested Party and to find that the Respondent did not breach Article 165 (1) and 167 (b) (i) and (ii) of the Constitution as amended. Counsel for the Interested Party orally argued that the letter referred to by the Applicant at page 39 of the record could not be interpreted to mean that the Permanent Secretary recommended the Interested Party as Senior Chief Tafuna. It was prayed that this matter be dismissed as the Respondent did not contravene Article 165 of the Constitution as amended . Costs were also prayed for. In reply, the Applicant filed an affidavit and skeleton arguments both dated 29th August, 2019. It was deposed that the JIO Respondent's affidavit in opposition was unreliable as it was sworn by the Committee Clerk of the House of Chiefs who was not a party to these proceedings and that it ought to have been sworn by the Permanent Secretary for Chiefs and Traditional Affairs or the Respondent. As a result, it was deposed that the Res_pondent's affidavit in opposition went against the n.iles of the Con:stitu tional Court. The rest of the affidavit in reply referred to matters that thi:s Court already determined to be outside of its jurisdiction, ther,efore we shall not refer to them any further. To support the reply, written submission were filed into Court. Emphasis \Was placed on the provisions of Articles 169 ( l) a nd 177 ,(5) of the Constitution as amended as read together with section 8 of the Chiefs Act . . It was submitted that following the recommendation of Rapheal Tafuna Sikazwe to the local authority as Senior Chief Tafuna, the Council Secretary of the Mpulungu District Cound[ wrote to the Provincial Chiefs and Traditional Affai rs Officer in Ka:sama on his selection as Senior Chief Ta~una. It was added that on 30,th August, 20 18 the Provincial Chiefs and Traditional Affairs Officer wrote to the Permanent Secretary in the Ministry of Chiefs and Traditional Affairs with information of a chieftaincy dispute. That despite J !l.l being informed of the dispute, the Permanent Secretary proceeded to request the provincial administration of Northern Province to ensure that the Interested Party commenced the performance of royal dut ies. [twas reiterated that the Respondent contravened Article 165 (1) of the Constitution as amended because the Permanent Secretary of Chiefs and Traditional Affairs was not allowed to advise the provincial administration of Northern Province to superintend over customary issues. In this regard, emphasis was placed on the supremacy of the Constitution and the case of Wilford Funjika v A t torney G,e n e ral3 was cited in which the Supreme Court resounded the provisions of Article 1 ( 1), (2) and (3) of the Constitution as amended. It was submitted that the Respondent acted in contravention of the Constitution and it was therefore prayed that this Court find the Respondent liable as such. We have considered the evidence and arguments by the parties. What we consider as falling for our determination is whether the action by the Respondent of placing the Interested Party on the payroll amounted to a recommendation in breach of Article 165 ( 1) and 167 (b) (il and (ii) of the Constitution as amended. Our Jl2 starting point will be to look at the law relating to the issue before us. Article 165 of the Constitution as amended provides: '' 165. ( l~ The institution ,of ,chi,eftai:ncy and traditional instituti,ons are guarante,ed and shall exist in .accordance with 'the cultu:r,e, customs a:nd traditions of the p,eopl,e to whom they apply. (.2') (.at (b,) Parliament shaD not enact l,egislation which - confers on a p,erson or authority the right to recognise or withdraw th,e r ,ecognition of a ,chief; ,or derogat,es from th,e honour and dignity ,of the institution of chi,eftaincy.'' (E.mphasis .addedt Article 167 provides: "167. A chief - (a) may own prope.rty in a personal ,capacity; and ,(b) (i) shall e.njoy p.riv. Ueges and benefits - bestow,ed on the offi,ce of chkf by or under culture, ,custom and tradition; and .attached to the ,offi,ce of chief, as prescribed." (iit Art icle 16 9 (1 ) and (5) (c), (d) and (f) provide: "169,. (II Ther,e is established a House of Chiefs. (5) (c) The functions of the House of Chiefs are to - initiate, discuss and d,ec:ide on matt,ers ,cust,omary law and practk,e; local initiate, discuss and make r,ecomm,endations to a auth,ority regarding the welfa'r,e of communities in a focal authority; advise matt,ers ... " traditional and cust,omary the Govern.ment on (d} (f) r,elating to Artide 2 66 d e fin es a c hief a s follows : "chief" :me.ans a pe,rson bestow,ed as chi,ef and who deriv,es alle,giance from the fact of 'birth or descent, in acco.rdance with the customs, trad,itions, usa,ge or consent of tbe people in a chietido.m;" Jl3 Section s 8 a nd 14 of t h e Chiefs Act provide as follows : '"'8. T .here shall be paid to ,ev,ery Chfof and Deputy Chief, for the :purp,ose of 1enabiling him t o mai ntain t he status of his office and to discharge the tradi tional fiuncUons of his office under African custom ary law in a fit and prop er mann er, such subsidies as the Pre sident may determine." " 1 4. All sub sidies, sala .r ies and a llowa nces payable under this Act shall b e pai d ,ou \t of moneys a p p rop riated by Parliament for the p urpo se." From our reading of Article 165, the recognition of a chief requires the performance of some formal act which serves to recognize o r confirm the s t atus of a chief. Further, the same Article prohibits Parliament fro m enacting legislation on the recognition or withdrawal of recognition of a chief. This follows a background where previously, legislation provided for the recognition or withdrawal of recognition of chiefs through a statutory instrument. Therefore, recognition depended on the President and could be withhdd. The issue is whether the placing of the Interested Party on the payroll amounts to a recommendation 1n breach of Article 165 of the Constitution as amended. In the case of Bernard Shajilwa and 4 Others v The Attorney Gener a l and 3 Others 2 , this Court interpreted the provisions of Article 165 at J 63 as foUows: "Afte.r all due c onsideration i t is o u r finding that on the evidence b e fo r e us, the p la cem e n t of t he 2 n d Respondent on the payroll J14 does not in and of itself constitute recognition ,envisag,ed by Artide 165 of the Constitution as amended. Swch an inte.rp:retation is not tien:able. In our cousidered view, to say so would mean that from the time Article 165 came into fo r ce, it became illegal t ,o pay the c .hief's subsidy or perform other purely administrati ve processes relating to a chfof.. Therefore th,e Jrd a nd 4tb Respondent's a c tion in placing the 2nd Respondent on the payroU wer,e within the law and do not contravene Artide 165 of the Constitution as am,end,ed." Our perusal of the record clearly shows that the selection of the Interested Party as Senior Chief Tafuna was communicated to the Government through letters dated 3Qth August, 2018 and 18th December, 20 18, which sub sequently led to his placement on the Government payroll to receive subsidies as Chief. The record also shows that the Committee of Chiefs appointed to look into the Tafuna succession dispute subn1itted a report to the House of Chiefs and subsequently to the Ministry of Chiefs and Traditional Affairs through the office of the Permanent Secretary outlining their findings and recommendations. In a letter dated 30th August, 2018 and addressed to the Permanent Secretary of Chiefs and Traditional Affairs, the minutes of the formation of the electoral college of Senior Chie f Tafuna and his selection were attached and read as foHows (page 300, lines 9 to 11 of the record): "It was at that stag,e that all the members of the electo.ral coUe.g,e unanimously agreed to the selection of Mathew Kakungu as their heir to 'the throne of Senior Chief Tafuna and congratulated him JIS It is d.ear from the above that the Permanent Secretary of Chiefs and Traditional Affairs was merely informed of who was selected as Senior Chief Tafuna. We find that following the above recommendation, the Respondent proceeded to place the Interested Party on the payroll, in line with the provisions of Article Il..67 of the Constitution as amended and the provisions of sections 8 and 14 of the Chiefs Act. l t was on that basis that the R,espondent proceeded to place the Interested Party on the payroU. It is also evident from rthe record that none of t he Government officials that were present during the selection process of :Senior Chief Tafiuna pairticipated or formed part of the electoral college; they were invited as observers to ens ure law and order during the meeting at which the selection was done. The Applicant argued that the action by the Permanent Secretary of Chiefs and Traditlonal Affairs, Mr. Michael B . Pwete, to request the Permanent Secretary for provincial administration in Northe rn Province to 'superintend' over customary issues was a b reach of Article 165 ( 1) of the Constitubon as amended. From our perusal, t he record of proceedings at page 39 s h ows a letter dated 18th il 16 December, 2018 which was authored by the Permanent Secretary of Chiefs and Traditional Affairs and addressed to the Permanent Secretary for provincial administration in Northern Province. A reading of the last three parag1raphs of the letter is as foUows: "How,ever, it ha:s come to tJhe attention ,oft.his Ministry that the auth,ori1tie,s ilD Mpulungn D.istirkt especially the Town Council has allegedly refused to ackncowledge that th,ere is a new Senior Chief. Th,e Co\11nicil ha:s contin\Ued 1pay.in,g monthly wages to th,e three (3t retame.rs whose employroe11il't has sinc·e 'been terminat,ed by th,e new Chief. 'Tlh.e C '.ounci1I :has abo allegedly :r·efus1ed t ,o put the new retainers recruited by the new Senfo.r Chief on the payroU. F 1urthrer, it has be'en rep.o.rted that Mr Cosmas S:ik:azw,e Tafiuna bas alle1ged. U.y ,refu'sred to vae:ate his acting appointm,ent as Dreputy Senior Chief Tafuroa w]ilich h ce should have ,done upon selection a;n.d iinstallllation of th·e new S 'enio.r Chi,ef. By re.as\On of the Ioregoing, I hereby re,quest your office to superin\tend ove.r Ure above issues so that the new Senior Chief can smoothly commence th:e pe·r.formance ,of his .royal duties." (Eimrphasis (ours1) According to Black's Law Di,ctionary (l968t R ,evis,ed 4th Ed, at page 1606, to superintend m reans to have charge and direction of, t o overs,ee the details, to take care of w ith authority, etc. We are of the view that th e request made by the Permanent Secretary was one of an administrative nature within the Ministry of Chiefs and Traditiona[ Affairs to normalise the payment of subsidies and monthly wages on the payroll, and not one t hat made any recommendation as to who the :Senior Chief shall be. It was the correct step t o take under the law and was not an act of J17 recommendation o r recognition o f Senior Chief Tafuna. The Applicant in his affidavit in reply dated 29th August, 2019 raised an issue in which he s t ated that the Respondent's affidavit was unreliable as it was s worn by the Committee Clerk of t he House of Chiefs, who was not a party to these proceedings. He further deposed that the correct party who should have sworn the affidavit was the Permanent Secretary of Chiefs and Tradi tio n al Affairs . We wish to state t h at the rules of evidence allow a party to call in aid any witness who that party feels will benefit their case. Such witness ought to be a relevant witness, one of facts and one who is credible. The Rules of the Constitutional Court in O. Vl are instructive on admissibility and contents of an affidavit. O. VI r.10 reads as follows: " 10. An affidavit shall not be admitted which is proved to have been sworn by a person before - (a) (b) (c ) the person on whose behalf the same is offered; the perso n's advocate; or a partner or clerk of the person's advocate ." Furthe r, O. V1 r.13 reads as follows: " 13. An affidavit shall contain only a stateme nt of facts and circumstances to which the witness deposes, bas ed on the witness's own personal knowledge or from information which the witness believes to be true." (Emphasis added) Our perusal of the Respondent's affidavit in opposition reveals that it was sworn by the Committee Clerk in the House of Chiefs, Mr. Cade Chikombo. The evidence deposed to was factual in nature and spoke to matters that he perceived when he participated in the deliberations of the House of Chiefs. Mr. Chikombo was thus a competent witness to give evidence in this regard. In summation, we have found that the action by the Respondent of placing the Interested Party on the payroll was within the law and was not a contravention of Articles 165 and 167 of the Constitution as amended. We find no merit in this matter and dismLiss it. Each pairty to bear their own costs. 43--, M. S. Mulenga CONSTITUTIONAL COURT JUDGE P. Mulonda CONST][TUTION OURT JUDGE J19 I