Ruling By The Hon Mr Speaker on the Point of Order raised By Mr C Mweetwa, Member of Parliament for Choma Central Parliamentary Constituency, Against Hon R K Chitotela, Mp, Minister of Housing and Infrastructure Development, alleging That The Hon Minister

RULING BY THE HON MR SPEAKER ON THE POINT OF ORDER RAISED BY MR C MWEETWA, MEMBER OF PARLIAMENT FOR CHOMA CENTRAL PARLIAMENTARY CONSTITUENCY, AGAINST HON R K CHITOTELA, MP, MINISTER OF HOUSING AND INFRASTRUCTURE DEVELOPMENT, ALLEGING THAT THE HON MINISTER THREATENED MR C MWEETWA, MP, THAT HE WAS RISKING HIS LIFE DUE TO THE MANNER IN WHICH HE WAS DEBATING IN THE HOUSE, ON WEDNESDAY, 14^TH NOVEMBER, 2018

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Hon Members will recall that on Wednesday, 14^th November, 2018, when the House was considering Head 25 of the Estimates of Revenue and Expenditure, and Mr N Samakayi, Member of Parliament for Mwinilunga Parliamentary Constituency, was on the floor, Mr C Mweetwa, Member of Parliament for Choma Central Parliamentary Constituency, raised a Point of Order in which he, inter alia, stated as follows:

“Madam Chairperson, may I state that I am cognisant of the fact that amongst the fundamental roles I should play as a Member of Parliament, like all of my colleagues, beyond representation and legislation, are the Budget approval and debate thereof, and providing oversight on the Executive. That is the reason why the people of Choma Central Constituency voted for me.

Last week, when this House was considering the Vote for the Ministry of Home Affairs, and in particular, Zambia Police, I stood on the Floor of this House to share my thoughts on that particular debate. As you would agree with me, I debated the Zambia Police the way I saw it. In my discourse, I made reference to corruption that is obtaining under the leadership of the Patriotic Front (PF) Government. I did not make mention of any particular individual. As you know, my debates are guarded and I do not make blanket or baseless statements.

Madam Chairperson, I pointed to the areas which are in public domain in respect of corruption and areas where citizens are not satisfied with the way public funds are being used. One of those areas I referenced my debate on was US$4.3 million spent on constructing a toll-gate under the Ministry of Housing and Infrastructure Development. I said that this is not the way we should be spending money. This money should have gone to the police.

I concluded my discourse that afternoon or morning, by stating that this idea of saying that you want to go and arrest Mr Hakainde Hichilema (HH), we, as Hon Members of the United Party for National Development (UPND), last time, did a lot of work to restrain people from going on the streets, which this time we were not prepared to do. You provided counsel after I made that statement.

Madam, at break time, the Minister of Housing and Infrastructure Development, Hon Chitotela, I suspect it was because of my reference to the toll gate worth US$4.3 million, met me at the lounge downstairs and told me, “Iwe mwaice iwe”, … meaning, you young man, “Why were you debating like that on the Floor of the House? Do you not know that you are risking your life?”

I told him that I am a policeman. I am trained not to fear to die. He said, “What I am telling you is serious.” This is what this Hon Minister here, my elder brother, Hon Chitotela, said.

He said, “What I am telling you is serious. If you do not know, there are people in this country who are trained, employed and paid to eliminate people.”

“So, this line of debate you are taking mwaice you are risking your life.”

I have a long standing history of friendship and comradeship with my elder brother and I respect him – he knows that and I have always told him that in my opinion, he is one of the sober Hon Ministers I took it as a joke. This is the way we joke because I joke with many Hon Ministers and Hon Members who are in PF, because they are my personal friends. So, I took it that way. Madam Chairperson, now, yesterday, after my debate on the Vote for the Ministry of Religious Affairs and National Guidance, where again I made reference to corruption obtaining under the PF, and pointed out areas of corruption, such as Social Cash Transfer abuse; Ministry of Education; three officers under his ministry who have been suspended; and the toll-gate worth US$4.3 million, my elder brother went to other UPND Hon Members of Parliament and indicated to them that, “Hon. Mweetwa’s debates are not good. I did confront him to warn him that in this country, there is a wing trained to eliminate people; the wing of Government which President Rupiah Banda did not use, and President Michael Sata did not use, but that wing is there to eliminate people…”

Madam Chairperson, is my elder brother, the Hon Minister of Housing and Infrastructure Development, Hon Chitotela, in order to begin to instil fear in Hon Members of Parliament of the UPND and attempt to instil fear in me? Is he in order to inform me and other Hon Members of Parliament, whose names I will withhold, that the Government has a wing that can cause harm and even kill people? Is he in order to instil fear in me and threaten death to me, the Hon Member of Parliament for Choma Central Constituency, elected by the people of Choma Central Constituency, and by extension of those threats, threaten harm and/or death to my family members who could become a target in the execution of those threats?

Madam, considering the privileges and immunities of this House, is my elder brother, the Hon Minister of Housing and Infrastructure Development, in order to do what he is doing to me when I am merely stating facts in respect of the corruption obtaining under PF?

I seek your serious ruling, Madam Chairperson.”

In her immediate response, Madam First Deputy Speaker, Hon Catherine Namugala, MP, sitting as Chairperson of the Committee of Supply, reserved her ruling to enable her investigate the matter further. Subsequently, after studying the matter, I decided to refer it to the Committee on Privileges, Absences and Support Services, for further investigation.

Hon Members may wish to note that the Point of Order by Mr C Mweetwa, MP, raises the issue of a member’s freedom of speech and debate in the Assembly, and the alleged threat to his life.

Hon Members, let me begin by stating at the outset that, freedom of speech and debate in the House is a fundamental privilege accorded to members of Parliament. In this regard, Article 76 (1) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia, provides as follows:

“76. (1) A Member of Parliament has freedom of speech and debate in the National Assembly and that freedom shall not be ousted or questioned in a court or tribunal.”

Further, renowned authors on parliamentary practice and procedure, A O’Brien and M Bosc, in their book entitled House of Commons Procedure and Practice, Second Edition, (Ottawa, House of Commons, 2009), state, at page 89, as follows:

“By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings. It has been described as: … a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest, and the aspirations of their constituents.”

Hon Members, in view of the importance of this privilege, in the execution of their duties, section 23 (e) of the National Assembly (Powers and Privileges) Act, proscribes any act of molesting, intimidating or threatening a member on account of that member’s conduct in the House, or its committees. Section 23 (e) is expressed in the following terms:

“23. (e) Any person shall be guilty of an offence who assaults, insults or threatens a member or deprives a member of a benefit on account of the member’s conduct in the Assembly or a committee.”

Further, eminent writers A O’Brien and M Bosc, earlier referred to, state, at page 108, as follows:

“Members are entitled to go about their Parliamentary business undisturbed. The assaulting, menacing, or insulting of any Member on the floor of the House or while he is coming or going to or from the House, or on account of his behavior during a proceeding in Parliament, is a violation of the rights of Parliament. Any form of intimidation…of a person for or on account of his behavior during a proceeding in Parliament could amount to contempt.”

Hon Members, in line with parliamentary practice and procedure, as well as in accordance with the rules of natural justice, the Office of the Clerk of the National Assembly, wrote to the Minister of Housing and Infrastructure Developement, Hon R K Chitotela, MP, requesting him to state his side of the story. In addition, the Office of the Clerk wrote to Mr C Mweetwa, MP, requesting him also to furnish her office, with the names of the Members of Parliament from the United Party for National Development (UPND), who were approached by the Hon Minister of Housing and Infrastructure Development, as alleged in his Point of Order.

In his written response, Hon R K Chitotela, MP, denied having made the threat as alleged in the Point of Order. He further furnished the Office of the Clerk, with the names of persons that could be contacted to confirm his submission, because they were present at the material time.

Hon Members, Mr C Mweetwa, MP, in response, submitted the names of the Members of Parliament of the UPND, whom he alleged were approached by the Hon Minister of Housing and Infrastructure Development, to register the Minister’s concerns regarding the manner in which Mr C Mweetwa, MP, was debating on the Floor of the House.

Thereafter, the Office of the Clerk, wrote to all the witnesses mentioned by Hon R K Chitotela, MP, and Mr C Mweetwa, MP, and requested them to give their account of what transpired on the material day. In addition, the principal parties concerned, as well as their respective witnesses, eventually appeared before the Committee on Privileges, Absences and Support Services to testify.

Upon consideration of the testimony, the Committee identified the following key evidential matters touching on the complaint:

Where the principal parties and their respective witnesses were seated when the alleged statement was made;
who was present when the alleged statement was made;
who heard the alleged statement; and
whether the alleged statement was made at all.

Where the principal parties and their respective witnesses were seated when the alleged statement was made

(i) Testimony by the principal parties

Mr C Mweetwa, MP, and Mr E K Belemu, MP, testified that the statement was made in the bar; and

Hon R K Chitotela, MP, testified that he found Mr C Mweetwa, MP, in the lounge.

(ii) Testimony by Mr C Mweetwa, MP’s, witnesses

Mr D Syakalima, MP, testified that Hon R K Chitotela, MP, made the statement while seated at a round table within earshot of the bar counter; and

Mr E K Belemu, MP, also testified that the statement was made in the bar.

(iii) Testimony by Hon R K Chitotela, MP’s, witnesses

Dr M Malama, MP, testified that they were seated in the lobby at the bar. However, he also testified that no such statement was made;
Dr C Mulenga, Permanent Secretary in the Ministry of Home Affairs, testified that they were seated at the terrace outside the bar. However, he also testified that no such statement was made;
Mrs P C Kabamba, Permanent Secretary in the Ministry of Home Affairs, testified that they were seated at the lounge, and no such statement was made;
Mr W Mangimela, Deputy Permanent Secretary in the Ministry of Home Affairs, testified that they were seated in the lounge. He also testified that no such statement was made; and

Mr E M Sibote, Deputy Inspector-General of Police, testified that they were in the lounge. He also testified that, no threats were issued by anyone.

From the preceding testimony, it is evident that four (4) of the witnesses testified that they were seated in the lounge, three (3) of the witnesses testified that they were in the bar, one (1) witness testified that they were in the lobby at the bar and one (1) witness testified that they were on the terrace outside the bar.

2. Who was present when the alleged statement was made?

(i) Testimony by the principal parties

Mr C Mweetwa, MP, testified that he was with Dr M Malama, MP, Mr D Syakalima, MP, and Mr E K Belemu, MP, when Hon R K Chitotela made the alleged statement; and

Hon R K Chitotela, MP, testified that he was with Mr C Mweetwa, MP, Dr M Malama, MP, Dr C Mulenga, Ms P Kabamba, Mr W Mangimela and Mr E Sibote. However, he made no mention of Mr D Syakalima, MP, and Mr E K Belemu, MP, being present.

(ii) Testimony by Mr C Mweetwa, MP’s, witnesses

Mr D Syakalima, MP, testified that he was seated with Mr E K Belemu, MP, and Mr C Mweetwa, MP, and that Hon R K Chitotela, MP, was not seated with them. Nonetheless, he was within earshot; and

Mr E K Belemu, MP, testified that when he entered the bar, he found Mr D Syakalima, MP, Mr C Mweetwa, MP, and Hon R K Chitotela, MP, conversing.

(iii) Testimony by Hon R K Chitotela, MP’s, witnesses

Dr M Malama, MP, testified that he was with Mr Sibote, Dr C Mulenga, Permanent Secretary in the Ministry of Home Affairs, and Mrs P C Kabamba. And they were later joined by Mr C Mweetwa, MP, and Hon R K Chitotela K, MP;

Dr C Mulenga, Permanent Secretary in the Ministry of Home Affairs, testified that he was with Dr M Malama,

MP, Mr C Mweetwa, MP, Mrs P Kabamba and Hon R K Chitotela, MP;

Mrs P C Kabamba, Permanent Secretary in the Ministry of Home Affairs, testified that she was with Dr M Malama, MP, Dr C Mulenga, Mr E M Sibote and Mr W Mangimela when Mr C Mweetwa, MP, joined them on invitation by Dr M Malama, MP. She further testified that Hon R K Chitotela, MP, was seated at a different table from theirs;

Mr W Mangimela, Deputy Permanent Secretary in the Ministry of Home Affairs, testified that he was with Dr M Malama, MP, Dr C Mulenga, Mr Sibote and Mr Mweetwa, MP. But Mr C Mweetwa, MP, later went to join Hon R K Chitotela, MP, at a different table; and

Mr E M Sibote, Deputy Inspector-General of Police, testified that he was with Hon R K Chitotela, MP, Dr M Malama, MP, and Dr C Mulenga when Mr C Mweetwa, MP, joined them.

3. Who heard the alleged statement?

(i) Mr C Mweetwa, MP, and his witnesses

Mr C Mweetwa, MP, testified that only Mr D Syakalima, MP, heard the statement; and

Mr E K Belemu, MP, testified that he also overheard the statement.

(ii) Hon R K Chitotela and his witnesses

Hon R. K Chitotela, MP, and all his witnesses testified that none of them heard the statement.

4. Whether the alleged statement was made at all

(i) Mr C Mweetwa, MP, and his witnesses

Mr C Mweetwa, MP, and all his four (4) witnesses testified that the statement was made.

(ii) Hon R K Chitotela and his witnesses

Hon R K, Chitotela, MP, and all his five (5) witnesses testified that the statement was never made.

The Committee noted that the many contradictions in the testimony by the witnesses made it difficult to ascertain what transpired on the material day. As a result, based on the testimony before it, the Committee was unable to conclude that Hon R K Chitotela, MP, had, indeed, made the statements attributed to him by Mr C Mweetwa, MP, in his Point of Order. And, consequently, dismissed the complaint and closed the matter.

Hon Members, in considering and evaluating the decision arrived at by the Committee, I observed that the Committee on Privileges, Absences and Support Services was, in the main, confronted with two conflicting versions of what transpired on the material day. While it is acknowledged and accepted that the Committee is a quasi-judicial body, it must, nonetheless, meet certain threshold of procedural justice.

First, the basic common law principle is that; “he who asserts must prove.” Stated alternatively, the burden of proof falls on the party who makes a positive assertion or allegation. In this case, the burden was on Mr C Mweetwa, MP. That is, the burden was on Mr C Mweetwa, MP, and his witnesses, to prove the allegations made in the Point of Order. Second, he or she who asserts must also meet or fulfil the standard of proof. Hon Members, the standard of proof is the measurement of the degree of certainty or probability which the evidence must generate in the mind of the tribunal of fact. Stated alternatively, it is the standard to which the tribunal of fact must be convinced by the evidence before the party bearing the burden of proof, becomes entitled to succeed in a case or to have a favourable finding of fact on some issue which he or she has set out to prove.

The standard of proof demanded, Hon Members, varies according to the nature of the issue to be proved. However, the fundamental divergence is between civil and criminal cases. In civil cases, the burden of proof is discharged on the preponderance of probabilities. Hon Members, this is a term of art. The term preponderance of probabilities requires a tribunal of fact, to be satisfied on the evidence that it is more likely to have occurred than not. In the case of criminal cases, it is common knowledge, that the burden of proof is discharged when the allegations are proved beyond reasonable doubt. A party who fails to discharge the burden of proof placed on him or her to the requisite standard of proof, will lose on the issue in question.

Hon Members, if a serious allegation is made, say of a criminal nature, then cogent and credible evidence is required to be adduced in order to prove the allegation. Similarly, the more serious the consequences for an individual against whom the allegations are made, the more cogent and credible evidence is required to be adduced.

In this case, the allegations made by Mr C Mweetwa, MP, were very serious; indeed. They had criminal connotations. Therefore, the allegations required to be supported by cogent and credible evidence. However, the evidence adduced by Mr C Mweetwa, MP, and his witnesses, left the Committee in doubt as to whether Hon R K Chitotela, MP, uttered the alleged threat. I have, therefore, been persuaded, by the conclusion arrived at by the Committee, that, Hon R K Chitotela, MP, did not make the allegations or threats complained of. Consequently, I endorse the recommendation of the Committee that the complaint be dismissed.

I THANK YOU.