If one deployed research methods used in western countries to unmask the character and behaviour of African judiciaries and judges respectively, specifically the Constitutional Court of Zambia, it would be a piece of cake.
Studies of African judiciaries are generally at the descriptive stage mainly concentrating on the trappings of autonomy and independence using benchmarks mapped out by international conventions and collections of studies by international organisations. Some studies delve into a little bit of qualitative studies delving into a critique of individual decisions or a series of decisions to decipher the character of the impugned judiciary. There are no sustained studies of judges as individuals in Africa.
In the West there are thousands of biographies and autobiographies of judges, interviews of judges, videos of actual judicial proceedings, videos of confirmation hearings, collections of judgments authored by individual judges critiques of judges by judges and scholars; all to fill the lacunae in quantitative data, the subject of today’s column as it relates to the Constitutional Court of Zambia. I will however take a detour on my journey to the ConCourt.
In Africa, the South African judiciary is the most studied, perhaps because of the background of Apartheid and the need to transform that judiciary from its commission of the original sin under Apartheid. Surprisingly, even before the collapse of Apartheid that judiciary was most studied because of the tension that existed between elements of the progressive bench and the status quo and the unique presence of an articulate intelligentsia in the context of a volatile political situation. I have written on this elsewhere.
The Kenyan judiciary has also received a lot of attention especially after the new Constitution of 2010 which resulted from the civil unrest consequent to the 2007/2008 election. The new Constitution brought about a transformed way of judicial selection and appointments system. The Presidents of South Africa and Kenya have a very limited role in the selection and appointment of judges of the apex courts compared to Zambia, for example. The judiciary in those countries have been decoupled from the executive gerrymandering and control. The literature now points to the evidence that when a President’s role in the selection and appointment of the judges of the apex courts is curtailed, the quality of the judges and the decisions of the judges, improve. That is what the literature says and not me.
Former Chief Justice of Kenya honourable Mutanga said so as well a few years ago at a seminar at the Southern Sun Hotel in Lusaka. A number of Zambian judges and scholars were there; so has honourable Albie Sachs, a former judge of the Constitutional Court of South Africa in his speeches around the world, some of which I have attended. It makes a difference when a judge relates their experiences and you can ask questions rather than reading about it.
Further, the tenure of judges at the Constitutional Court of South Africa is limited to 12 years and the tenure of the Chief Justice in Kenya is 5 years, all militating against the solidification of a judicial dictatorship or aristocracy and to renew the blood of that important branch of democratic government. It is judicial democracy matching political democracy where there are elections every five years. The judiciary is prevented from atrophy, ossifying, freezing and being permanently captured by the executive. All these studies are descriptive and qualitative and serve a very important role in understanding the evolving character of the South African and Kenyan judiciaries.
In the Western World, particularly in the United States, and Canada, the study of the judiciary and individual judges has gone quantitative and has been so for decades. Quantitative studies give you more data and precision on understanding the phenomenon under study and when combined with descriptive qualitative studies, a complete picture of the character and behaviour of the judiciary and individual judges is evidenced.
The quantitative data can be an interesting maze. Which president appointed which judge; how many times has that judge been siding with the majority and how many times has he sided with the minority judgments; when in the majority or minority, which judges has he been with; how many times has he written a majority or minority judgment; how many times has he spoken in court; how many times has he sided with the government; on what issues does he rule or side with in the majority or minority; what percentage of times has he sided with business entities, with labour, with civil rights issues, on gender matters, on criminal matters, on police immunity, on tax matters, on the death penalty, on state rights, on race and racial profiling matters, etc; what percentsge of cases does the judge care for precedent or not; where was the judge educated (Harvard, Yale, Oxford, Cambridge, Columbia, Toronto, McGill etc); what was he before appointment (prosecutor, defence counsel, department of justice, labour lawyer, social justice movement etc); is the new judge a female or man; is the appointee conservative or liberal; is he a minority in terms of race; how many judges has this leader appointed and what if any is their voting trend; was the nomination based on the judge’s contribution to the party that appointed him; how was he as a lawyer; what has he written in his life; is he going to favour the status quo or not; can he live up to the oath of office; what was his rating by the Bar Association and etcetera.
There are statistics galore in every aspect that are collected and kept year after year for decades and they appear in newspapers after every important decision. There are scholars tracking these statistics, especially political scientists. If you watch soccer, cricket, football, basketball and any sport played in the West you are familiar with those dizzying statistics. The same equivalent statistics are gathered for the judiciary as well as individual judges of apex courts and courts of appeal.
Judicial character and the behaviour of individual judges become apparent but not simplistically. A female judge in the US Supreme Court was very conservative but liberal when the case of abortion came up. In Canada a female judge was known as a Progressive Conservative. Progressive on issues involving women but conservative on issues dealing with men who commit crimes.
Chief Justice John Roberts of the Supreme Court of the US is very conservative but gets awakeningly liberal when some decisions threaten to weaken the national fabric or when a famous precedent stands unjustifiably about to be overturned. Some judges are consistently voting for the party that appointed them.
Some judges are consistently inconsistent. The gravamen of the quantitative data discloses to a great extent the existence of judicial autonomy and independence in the West. Judges who are conservative in tax matters maybe progressive in criminal matters. Judges there can surprise you. You can never lose hope in the judiciary there. Unpredictability of how a particular decision will go is the essence of neutral justice. The State is never guaranteed judicial victory.
In the Western World you know more about your judges both at the time of their appointment and after their appointment than you will ever know about your judges in Africa and specifically Zambia where judges are generally just sprung onto the market. In South Africa and Kenya, the picture is moving towards the western model in the selection and appointment of apex courts judges. The quality of the judiciary and the judges has evidently improved. But not without a fight. There is more judicial autonomy and independence in South Africa and Kenya than in Zambia. The judiciary and judges are more scrutinised and accountable in South Africa and Kenya than in Zambia. Judges in the West are more scrutinised and accountable than in Zambia.
In terms of any move from descriptive qualitative research method to quantitative data collection leading to deciphering and profiling the character and behaviour of the Zambian judiciary and judges, the Constitutional Court and its judges are easy pickings because irrefutable data is there for assessment albeit not yet systematically collected. If your data, if any, is different from what I document below, please share it with me. This court is very new, there are few judgments to assess, all the judges got their first degrees from the University of Zambia, all the judges have been appointed by one president, President Edgar Lungu.
Unlike the US or Canadian Supreme Courts where judges deal with a million different cases from all areas of the law, Zambian ConCourt judges only deal with constitutional matters; unlike US and Canadian etc Supreme Courts that have favoured and disfavoured the Executive in different voting patterns, in Zambia the ConCourt has voted in favour of the Executive close to 100 percent of the times, unprecedented in modern judicial history across the democratic world; unlike most Western apex courts where judges dissent among themselves, in the Zambian ConCourt, judges have issued unanimous judgments close to 100 per cent of the times, another staggering and uncharacteristic trait of apex courts in the entire democratic world; unlike other apex courts that do not rule or dismiss cases on technicalities, the ConCourt has already ruled and dismissed cases on technicalities and not on merit at this stage in its young life; at this stage of its young life the ConCourt has already developed the penchant of substituting its own questions not submitted by the litigants and without affording the litigants the opportunity to make submissions on the new terrain And then the ConCourt has gone on to make fundamental pronouncenents based on the question they made up and then later on used that pronouncement as a binding precedent, another unprecedented stricture in judicial history.
The ConCourt, unlike its counterparts, has refused to answer a direct question of whether twice held office means the same as a term of office but has gone on to say it has already ruled on the matter using a precedent where it had specifically refused to answer that very question in a robust way; unlike its counterparts the ConCourt wants to depart from several centuries jurisprudence that constitutions don’t apply retroactively and the court is doing this without citing a precedent but merely accepting the lawyer for the Executive’s submissions who himself cited no precedent for departing from the centuries-old precedent of the non-,retroactivity of constitutional application ( Article 106(3)applies to the past old 1991 Constitution and new amended Constitution of 2016 while Article 106(6) applies only to after the 2016 amendments and applies specifically to the Vice-President). The ConCourt in its young life is already beginning to be defensive and to threaten the dissenters unlike its counterparts who allow criticism as part of transparency and accountability in a democracy and the indisputable data evidencing the character and behaviour of the ConCourt goes on and on.
From the data, UNZA law dons have concluded that the ConCourt is brewing a strange jurisprudence at the court. You may come to a conclusion using the data that the ConCourt is autonomous and independent; some people may see the same data as evidencing an executive minded or captured judiciary, the data may compel others to conclude that our ConCourt is a Progressive Conservative court or it is Liberal or Radical Court. Whatever characterisation you want to imbue our ConCourt and the behaviour of the collective and individual judges with, must be sieved through quantitative data analysis and not through political reflexes. No court has ever collapsed from being scrutinised. The opposite has instead happened: the judiciary has been strengthened
Dr Hamalengwa specialises in “Justice and the Judiciary”. Email: forthedefence@yahoo.ca.