The Consequences of the Struggle for Justice: My Canadian experience
Dr Munyonzwe Hamalengwa
By Dr. Munyonzwe Hamalengwa
There are consequences for those who struggle for justice and the rule of law. I have my own scars to show for it. And I will never stop until I am finally put to rest in my grave or if cremated until I turn into ashes. I learnt the art of struggle from my father who taught me a long time ago to fight for what you believe in no matter what the consequences. And there are millions of people who do the same everyday either as individuals, like lawyers or journalists etc or as members of groups like political parties, trade unions and the like.
As a student leader at UNZA during the one party state, I was one of the students detained by KK for fighting for freedom of speech, association, opinion, thought, assembly and to exercise our right to co-govern Zambia. For this, I with other students were detained at Mumbwa for six months without charge or trial. When we came out, we continued where we left off and as a result, six of us were expelled from UNZA and forbidden to work or study. There was only one university then. We were proved right eventually and the government recognized what we were fighting for was right. I detail all this and more in my book, Thoughts Are Free: Prison Experience and Reflections on Law and Politics in General. The book is available at Arcades’s Planet Books.
I then left for Tanzania. I continued propagating for justice there and the first article I wrote was, “The Impending Revolution In Tanzania”. I was cautioned by the powers-that-be that I should not bite the finger that feeds me noting that I was there as a refugee (though I never formalized the status) at the sufferance of the state. I stayed in Tanzania for one year, and learnt Swahili. Since I regard myself as a citizen of the world and wherever I am in the world, that is my country too, and I continue to struggle for justice.
I ended up in Canada where I lived for forty years. Immediately I arrived, and started university, I formed a group called Third World Development Studies Group to struggle for better education of Canadians regarding Africa in particular. I formed so many groups in Canada to struggle for justice that I can hardly count them. Or I was part of a founding group that struggled for justice, equality, against racial profiling and the right to vote. I founded the Forum for African Students in Toronto, York Student Movement Against Apartheid, Nelson Mandela Law Society, African Canadian Legal Clinic, Lawyers Against Apartheid and many others. Part of this is contained in my book Thoughts Are Free and some of it is contained in an extensive interview done by The Post and published on November 2, 2013.
One of the realities you encounter as a Black Person in Canada is racial discrimination, racial profiling, being overly scrutinized and targeted. That has been documented many many times. Commissions of Inquiry by the Government and others have concluded that Canada is infested with anti-black racism. The Law Society of Upper Canada that governs the legal profession released a report in the fall of 2014 where it found that Black lawyers are at the brunt or receiving end of justice in the legal profession. That report was in fact to side step a frontal finding against it that would have been more devastating if it was done by an independent body or agency. The report is lame. Nonetheless it is there. It confirms what we had been experiencing and saying for years. For many years, the Law Society had been refusing to conduct a study on racism and discrimination in the legal system. It was eventually forced to preempt a more thorough and devastating report. As I told the Post, I had been writing to the Law Society since the 1990s to convoke a study because there was massive evidence of discrimination against and scrutiny of Black lawyers and sole practitioners by The Law Society. The Canadian Bar Association to which I had given my research paper on the topic of discrimination against blacks in the legal system, released a report in 1997 verifying the complaints of Black lawyers. Both reports don’t go very far because they are slanted towards protecting the status quo.
A Black lawyer in Canada as late as the last week of July 2016 alleged racism against the Law Society of Upper Canada. One time the Law Society came to my office and started asking my secretary very personal questions about me which they never ask about white lawyers. I alleged racial profiling and refused to cooperate and as a result I was suspended. Every person deserves equal treatment. A lot of my experiences are revealed in my manuscript “The Practice of Law in Canada”. I also have submitted for publication a book entitled, “African Canadians Under Legal, Judicial, Political, and Police Attack”. I deal extensively with racial profiling in Canada and my experiences in my book, “The Politics of Judicial Diversity and Transformation”. This book was published in 2012. This book compares Canada, US, England, Israel, South Africa, Australia, Colonial Countries and International Tribunals.
When I became a lawyer, I immediately became aware of the rampart racism in the Legal profession and in Canada in general, something I already knew about. I set about exposing this racism and I published over a thousand articles in the media,The Toronto Star, the Globe and Mail, Share Magazine, Pride Newspaper, Diversity Magazine, Criminal Lawyers Association Newsletter, Law Times, Lawyers Weekly and I gave interviews on radio and TV and so on.
I developed the system of class action law suits against the governments, ministers, the police, the prison system, correction services Canada and the Law a Society of Upper Canada. I had written a massive statement of Claim against the Attorney General for Ontario and others which I later emailed to The Post, The ZambianEye, Zambia Reports, Zambia WatchDog, Zambian Economist etc. I never hide or hid anything about the consequences I have endured in Canada because of my struggle for justice. When you struggle you pay a price be in Canada or Zambia or elsewhere. The price I am paying here is that some PF cadres and government want to silence me by sidestepping the issues I am raising. Has Lungu destroyed the rule of law or not. I say he has and I have given examples. I haven’t destroyed the rule of law in Zambia.
After I got in trouble for alleged over billing, The Post interviewed me and they wrote a long report in June of last year where I explained my circumstances. I also sent same report to many news outlets in Zambia.
This is how it happened. A police officer who had killed his mistress and buried her in his house terminated the services of about 11 lawyers and then retained me. He was on an enhanced legal aid pay scale paid for by the government. All reports and the government did a report on the case branded him as the most difficult client and all judges and prosecutors and lawyers including myself regarded him as the most difficult client they had ever encountered. He was set on derailing the system. He did this among others by dismissing a lot of lawyers in order for him to buy time or escape justice all together.
Of all the lawyers, I stayed on the case longest for one and half years. Despite the abuse and intensity of it all, I delivered him to the doors of trial. I had a very good chance of winning his case if he had just let me or any other lawyer defend him without him turning every body into an enemy. It was a difficult case. On the day the trial was scheduled to start, he discharged me so that he could ask for an adjournment to find counsel. Close to a year after I had left the case, I got notice from both the government and the Law Society that I had over billed on the case.
That was controversial. How could I over bill when there was a judge’s order to vet all my accounts by Legal Aid Ontario and all my bills, 14 of them were approved for payment by Legal Aid Ontario and they were paid, except the bill I submitted after I had been discharged. That bill was approved by Legal Aid but never paid by the government.
It transpired that Legal Aid Ontario who had been ordered by a court to vet my bills after an application by the government, got cold feet and changed their story that although they had approved all my bills, they had just not vetted them. Initially this government agency had stated that they had vetted my accounts but after pressure, changed its story to one of not vetting my accounts. So a government agency disobeyed a court order but without consequences. A government agency was negligent but I was the one who ended up with the consequences because an opening had occurred to discipline me. Obviously in a long and difficult case like that one, some miscalculations are likely to happen but it was never intentional as I explained to the panel. Besides, there was a government agency that was supposed to vet all my accounts, before payment and they were supposed to catch any mistakes.
And that government agency had approved all my accounts and they were paid. So what was the problem? The Law Society wanted to get me. The Law Society was the Complainant, it was the Investigator and it was the Prosecutor, all rolled into one. Can you get fair justice in such a system?
Further, how could I be so stupid to over-bill when from the beginning I raised the issue that the government decided to have an independent government agency to vet my accounts, something they didn’t do with a previous white lawyer. The government never went after her. They never assessed her. The Law Society never investigated her. They went after the only Black lawyer who came on the case, just as I had predicted that racial profiling and mistrust of Black lawyers would be involved. An Indian lawyer was also investigated and since the Law Society was not after him, they negotiated a sweet heart deal with him. The lawyer Raj Napal told me blankly that the Law Society just wanted me and they thanked him for leading them to me. Another prominent white lawyer, Edward Sapiano told me that if it was a white lawyer under similar circumstances, they wouldn’t even have bothered looking into this case. Another white lawyer John Calina told me the same thing. Of course I already knew all this. Independent white lawyers also already knew this.
The Law Society completely side-stepped this issue of racial profiling or mangled it, during litigation, but race was the central issue in this case. And the charges came long after I had left the case. My lawyer had applied to the Benchers and the Law Society to criminally charge me since what they were alleging was of a criminal nature, but the Law Society knew that they couldn’t convict me under that standard, so they refused to charge me criminally even though what they were alleging sounded like criminal conduct. They wanted to get me at all costs by lowering the standard of proof. It is one of the most devastating experiences of injustice where the charges laid are serious and require a serious standard of proof but because the accusers are desperate to convict, they violate the standard of proof. There is no defence to such allegations. Injustices are inbuilt and imbedded so you can’t escape guilty finding. In England, the lawyer discipline standard is proof beyond a reasonable doubt.
Most important however, is this fact. When the Law Society claimed that I had deliberately over billed, when my accounts in fact had an order on them for vetting before payment by a government agency, and that government agency recommended payment and I was paid, the Law Society had previously seized and had kept my billing accounts continuously for the past 15 or so years, accounts that were not ordered to be vetted by anybody. The Law Society found nothing wrong in all the years for which they had seized my accounts for scrutiny. How could I over bill on an account that I knew was being vetted by a government agency by a court order and I had informed the government that that was racial profiling because they didn’t do the same with the previous white lawyer. Why then would I not have over billed on 15 years of accounts that had no vetting order on them?
What governments and regulatory bodies do when they want to destroy a person or business that they regard as an enemy is to allege billing misconduct or to unleash the revenue agency to look into the accounting records or tax records of the person. Zambia recently knows the story of The Post. Need we belabour the point. It is exactly what happened to me.
I was a major threat to the Law Society of Upper Canada. I was exposing racism within and without the legal profession. The Law a Society had failed to destroy me for years and years until they hatched a system that I over billed. But in keeping with racial profiling, they never alleged the same against a previous white lawyer who in fact stayed for a very short time on the case but made more money proportionately than me who stayed for one and half years. They had a panel of benchers that did not comprise a single criminal lawyer who would understand the billing practices of criminal law or some mistakes that could occur which are not intentional. The benchers also deliberately misconstrued what constitutes racial profiling and completely and deliberately misapplied the parameters of this defence. My lawyer also wasn’t up to speed on this issue of racial profiling despite my attempts at educating him. His trajectory was that the issue could be defended without loading up on racial profiling. On this we disagreed. But I had already paid him handsomely. A previous lawyer who had been very knowledgeable on this issue of racial profiling had suddenly been appointed a judge shortly after I had hired him and had already paid him $25,000 which already largely already been used up. The appointment of that lawyer to the judiciary was very suspicious. He was the right lawyer for me under the circumstances.
There was a concerted effort to find me guilty. The finding was that I had intentionally over billed when I hadn’t. Many accounts had been vetted and approved by a government agency under court order as stated. Heads would have rolled if I was not convicted. I was fighting the system through massive class action law suits in order to change the entire practices of discrimination and racial profiling by the government and the Law Society of Upper Canada.
My case with the Law Society as indicated was covered by The Post last year in June. I had also sent notes of my case to most media outlets in Zambia, as I said. This is not new. This is not a scandal. I am innocent but found myself wrongfully convicted. My conscience is as clear as morning blazing sunshine. And I am not going to stop struggling for justice in Zambia or elsewhere, where ever I find myself just because of the injustices I suffered in Canada.
Can you imagine if Gandhi, Mandela, Castro and many others stopped fighting for social justice and commenting on the evisceration of the rule of law because of their criminal convictions, where would India, South Africa and Cuba be. So our detractors because of politically motivated convictions, people like Gandhi, Mandela, Castro and many others like myself must completely stop exercising their and my constitutionally given rights? Gandhi refused. Mandela refused. Castro refused. I refuse to be silenced. Only the guilty will be silenced. Even the guilty don’t lose their constitutional rights to exercise their democratic rights. I will never be silenced. My struggle for the rule of law in Zambia has nothing to do with the miscarriage of justice in Canada serve that the system reacts the same everywhere when it is challenged. It lashes out and gets organized to destroy those who point out its injustices. This is the consequence of the struggle for justice. My critics are not even answering the charges that Lungu is destroying the rule of law in Zambia and I have provided the evidence. They do not want to confront that evidence just like the Law Society refused to confront the evidence of racial profiling that is endemic in the Legal system there in Canada. And it is documented.
When I lived in the United States, I continued to struggle for justice there. I joined many groups and wrote hundreds of articles on how the justice system could be improved. Some of these ideas are contained in my book, Thoughts Are Free, a book that is available at Planet Books at arcades. The Struggle Continues and Zambia Shall Be Free.
Dr. Munyonzwe Hamalengwa is the Compiler of the book, The Case Against Tribalism in Zambia (2016).