The root causes of judicial crises and the Constitutional Court of Zambia
By Prof Munyonzwe Hamalengwa
There is judicial crisis centred around the Constitutional Court of Zambia.
The reason is simple. The Constitutional Court has power to determine who becomes qualified or disqualified to be president of Zambia, member of parliament and other political positions of power and consequently with that power, to command economic resources for the benefit of Zambia or for personal aggrandisement and corruption. There are high stakes of power domiciled in the Constitutional Court of Zambia making it the epicentre of struggle to remain in power, get into power, regain power or prevent others from getting into power. If in the process it means destroying the court and gain power on its ruins, so be it.
As the author is writing this article, the ConCourt is under siege from many angles without and within the court. Three judges have been suspended by the President on advice of the Judicial Complaints Commission (JCC), for reasons not disclosed to the public in violation of the principles of transparency and accountability. The affected judges have gone to court to challenge their suspension. There is a matter before the ConCourt to decide whether a former president is eligible to run for office again. That former president has filed an application to have three ConCourt judges recuse themselves from deciding the matter involving his eligibility to run for office again. One lawyer has gone to court challenging the suspension of the three judges. One State Counsel, who litigated against the eligibility of the former president to run for office for a third time, has been given amicus curiae status to assist the court in their deliberations as to whether the former president is eligible to run for office again. Previously the ConCourt had remained mute on the application for amicus curiae status of three prominent externally based Zambian professors on the then president’s eligibility to run for a third time. Will the court incorporate those extensive submissions in their deliberations this time around since they were not considered last time and in light of the court having given State Counsel John Sangwa status as amicus curiae status this round?
This article is wide ranging and it will touch on a lot of issues surrounding the current seige of the ConCourt. It is my thesis that the current crises embroiling the ConCourt started during the weekend of September 2 to 5 of 2016 when the ConCourt had agreed on September 2 to allow the presidential election petition to be argued beginning on September 5 then during the weekend, three judges mysteriously changed their minds and refused the petition to be heard. These are the three judges who are under current suspension.
The refusal by these three judges ignited a lot of consternation and litigation that is still simmering and reverberating. It is the manner in which these judges changed their minds over that weekend in September 2016, without giving the petitioners a chance to be heard on the matter that is in issue. The absence in court on September 5, 2016 of the lawyers for the respondents signalled perhaps that those lawyers had knowledge in advance of the decision of the three judges to abort the petition and the unprecedented action of those lawyers has never been questioned or sanctioned and it still remains a troubling outcome. The crises on the eligibility case continued when the three judges in issue were part of the majority that confirmed in subsequent decisions the eligiblity of the then president to run for a third term.
This author is on record in arguing that the decisions of the ConCourt on this issue have been some of the worst decisions in Zambia’s constitutional jurisprudence and the author has not been alone on this. The decisions have ignored Articles 1 and 7 of Amendment No. 1 of 2016. The decisions have ignored that former president Edgar Lungu was elected in 2015 under the 1996 constitution and therefore could not be covered under the 2016 constitutional amendments and the Constitution never applies retrospectively no matter how one wants to dress it. Articles 1 and 7 of Amendment No. 1 of 2016 is even poignant on this and it is important for each person to read those Articles for themselves and as such I have deliberately not quoted them here.
One can also opine that the crises in the Constitutional Court were ignited in the character of those who were initially appointed to that court. I cover this matter below in reference to their characterisation by John Sangwa, SC and the Law Association of Zambia (LAZ). I also posit that the incorruptibilty of the judiciary, qualifications, competence and independence of the judiciary, a judiciary appointed by an independent body and not by the President is our path to a secure society under the rule of law and constitutionalism.
I now elaborate on the judicial crises centred in the Constitutional Court. I float the idea of recalling the ConCourt and starting all over. The crises in ConCourt are so deep that there is no other way unless the Supreme Court takes over the ConCourt’s jurisdiction in the interim.
Charles de Secondat, Baron de Montesquieu, the father of the concept of “Checks and Balances” and “Separation of Powers” once stated that “No tyranny is more cruel than that which is practised in the shadow of the law and with the trappings of justice: that is, one would drown the unfortunate by the very plank by which he would hope to be saved”.
Is this the case in Zambia where you hope for judicial salvation only to be kicked in the groin because the judiciary is not there for the purpose for which it was installed? That those appointed to sit in judgment were not initially qualified and must be recalled. This is the subject matter of this column:. Should our ConCourt judges have been recalled for the reason of being constitutionally unqualified when they were initially appointed? The crises we endure may relate to the initial calibre of the judges of the ConCourt. The events of the weekend of September 2-5, 2016 are connected to the judiciary we were initially given in the ConCourt.
A law lecturer citing our Constitution Article 118(1) posited thus: “The Judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability”. A former magistrate in Zambia responded this way: “That is the Legal fiction. In reality it derives from the political party in power. …I don’t believe in the practical reality of that legal fiction. In fact the judiciary is only answerable to themselves and the politicians as opposed to the people”. The former magistrate excited me to no end when he concluded, “I have radical views on making the judiciary operate by the rule of law”. The law lecturer responded, “I wonder why we adopt provisions that we have no intention of respecting. Perhaps the people are to blame for not taking back this power that ‘they have given themselves'”. The Law lecturer is not me. I have not talked to the former magistrate whom I don’t know.
This article discusses how the people can possibly take back the power that they gave themselves through the judiciary. But since Zambians have never taken back this power, I can only discuss this by looking at how other countries have tried to take back this power, to make judges accountable to the people who gave them power and on whose behalf they are supposed to exercise that power. I will go about it the long way first by looking at how we the people never had or now have the power to give to the judiciary to account to us. The power was given by us or those who drafted the Constitution, to the President to nominate and appoint the judiciary. The current Constitution gives so much power to the executive to do almost anything and whatever he wants and the President can also do that through the legislature which he controls. The President controls both the legislature and the judiciary. Let’s take back the power we have given to the executive as the first step we the people can do.
How we appoint our judiciary in Zambia is so different from how the judiciary is appointed in the US, UK, Canada, Kenya and South Africa. There is a measure of people-input in judicial appointments in those and other countries. In Zambia people have no or little in-put in drafting and approving the Constitution either. Examine how the 2016 amended Zebra-stripped Constitution came about in Zambia and compare how the Kenyans and South Africans came about their current constitutions and how their judiciaries are appointed, there is a world of difference. Theirs are people-driven and ours is not but executive-driven.
Our President literally controls both the Legislature through his majority in parliament and the Judiciary through the power of appointment. The innovation of checks and balances and separation of powers that de Montesquieu fostered in constitutional democracy is currently foreign in Zambia. That is the fiction the former magistrate is referring to: it is fictional to claim that the people gave the judiciary powers to exercise on behalf of the people. There is no such thing according to the magistrate who states that the judiciary is only accountable to itself and to the political party in power and the appointing authority being the President.
It is fictional to believe that in Zambia there is separation of powers and that there are checks and balances. I am submitting that in Zambia, it is more like a pyramid of power with the Executive controlling the other two branches and the other two branches never fight back. In the US, sometimes the Legislature fights back and the Judiciary has a history of fighting back. In Zambia, the inherited colonial judiciary fought back initially and one chief justice even resigned. That was the end of judicial resistance since. In South Africa chief justice Mogoeng Mogoeng fought back by demanding to see President Zuma to reign-in his cadres who were volubly criticising the judiciary for doing its job. In Kenya, chief justice Maranga fought back when President Uhuru Kenyatta threatened the judiciary after it nullified the fraudulent election of August 2017. In Malawi the judiciary fought back by annulling another African fraudulent election. The judiciary fought back by openly stating that some politicians offered bribes to them to rule in their favour. In Old Burma a judge walked off the bench in resignation after ruling against the repressive government. In Canada chief justice Beverley MaClaghlin publicly answered back at Prime Minister Harper when he tried to blame her for the judicial crises that developed after his candidate for appointment to the Supreme Court of Canada was rejected by the Supreme Court of Canada.
These and other examples demonstrate the spirit in which de Montesquieu proposed the concepts of checks and balances and separation of powers to be operative. It is a fiction in the modern world to state that the judiciary cannot speak for itself. I have just given provable and recent examples where the judiciary has spoken for itself. In Zambia it is because of the existence not of separation of powers but the Pyramid of Power that the judiciary cannot speak for itself. President Edgar Lungu warned the judiciary at an airport in Solwezi not to be adventurous by following the example of the independence of the judiciary of Kenya that had nullified a fraudulent election in the exercise of its powers. The Zambian judiciary never answered back at this attack on the concepts of separation of powers and checks and balances.
Let’s go back to the former Zambian magistrate who called the stipulation in Article 118 of our Constitution as legal fiction. Even president Trump has come to the aid of the magistrate by pointing out when he lost a case that the decision was made “by an Obama judge” earning him the rebuke of the SCOTUS Chief Justice John Roberts who retorted that there is, “no Obama judge, or Bush judge or Trump judge but simply judges of the United States of America trying to do their best to bring about justice….”.
This is yet another example where the judiciary speaks for itself and answers back rather than through their decisions or through the equivalent of the Law Association of Zambia (LAZ). Of course the judiciary in answering back directly does not preclude LAZ or equivalent or their decisions speaking on their behalf. In the instant case of Trump, he had insisted in a crude but deeply troubling truthful projection that any court case losses he endured would be corrected by the Supreme Court of the United States where he had already placed by appointment three extreme conservative justices now making the majority of the complement of judges. Like in Zambia’s Constitutional Court where president Lungu never lost any meaningful case, other than the election related cases which were obvious, Trump has won a good number of cases including the “immunity case”.. But as I wrote in the Zambia Daily Mail years ago in 2017, there is always “Judicial Rebellion Against Trump” in the lower courts. But as I also have written severally elsewhere, there is more unpredictability in the SCOTUS than in the ConCourt of Zambia where one can predict with almost absolute certainty how the court would rule during the Lungu prsidency.
There is no justice when the judiciary becomes predictable. In the US, the Chief Justice or another justice usually steps up to the plate to uphold national values of justice rather than the political embellishments of Trump or the party in power as the case may be. The point here is that Trump has expressed the view that the judiciary is accountable to him as the appointing authority. Trump has demanded that three female justices who have issued decisions and statements against him must recuse themselves any time an issue implicating him comes before the SCOTUS. He has accused these three justices of having incurable reasonable apprehension of bias against him. He wants the judiciary to be totally beholden to him and should not exercise judicial independence and judicial autonomy. He is so different from almost all presidents that have graced that magnificent office. He is behaving like most African presidents but one. In the current judicial crises, Lungu has asked three judges to recuse themselves because he believes they are pro-President Hakainde Hichilema.
Enter Nelson Mandela. At the beginning of his presidency, he received a subpoena to attend court in a case in which he had been sued on an issue of national importance. He was urged to ignore the subpoena by his party and many people. Mandela obeyed the subpoena and he lost the case. He went on to obey the court decision. He later wrote in his book, “Dare Not Linger: The Presidential Years” why he obeyed both the subpoena and the court decision: “I have to be bossy and establish that I obeyed the subpoena out of strength and not weakness. These two examples clearly demonstrated that in the new South Africa there is nobody, not even the President, is above the law, that the rule of law generally, and in particular the independence of the judiciary should be respected”.
Could you expect then presidents Magufuli of Tanzania, president Lungu of Zambia, and President Museveni of Uganda or President Kagame of Rwanda to obey a court subpoena, let alone a court order? Despite Trump’s intransigence, he obeys court orders albeit huffing and puffing. In Zambia the ministers did not pay back the monies ordered by the Constitutional Court for years and they all pointed to the President for their position in not paying and the President did not order them to pay back. The government also ignored the order of the Tax Appeals Tribunal to hand over back The Post newspaper to the Post in 2016.
In Kenya, president Kenyatta disobeyed over ten judicial orders in favour of Kenyan politician and lawyer Miguna Miguna. In the US, there are checks and balances and separation of powers pursuant to the spirit of de Montesquieu. In Africa from the examples of Zambia and Kenya, there is legal fiction in these areas where leaders disobey court orders. American, Canadian, and British leaders fear being cited for contempt of court but not in Africa where no court dares cite a president or minister for contempt of court.
Zambia falls further down on the totem pole in relation to the judiciary not fighting back against political power or those accusing some branches of the judiciary of being unqualified to be judges or of being incompetent. John Sangwa, SC, has openly stated that president Lungu never answered his accusation that he appointed unqualified judges to the Constitutional Court, neither has the court refuted his claim that the judges of that court are unqualified. Sangwa has also challenged the judiciary to come forward and state that each was appointed on merit. Of course it is difficult to answer such in the abstract. With respect to the ConCourt he itemised the disqualifying factors. He stands unrefuted. His position remains unchallenged.
We have seen that it can no longer be stated that the judiciary cannot speak for itself. The judiciary does speak for itself in the US, Canada, UK, Kenya, South Africa, Old Burma and elsewhere. While LAZ can speak and defend the judiciary, the judiciary can also speak and defend itself. The unrefuted
accusation by Sangwa SC cannot be wished away by merely stating that accusing the judiciary of such will bring the reputation of the judiciary into disrepute. What kind of thinking is that? The reputation of the impugned branch of the judiciary would be in disrepute if the accusation is not refuted. Logic abhors circular thinking.
As a result of the unrefuted accusation which stands credible until credibly demolished, should our Constitutional Court judges be recalled because they were appointed in disregard of the constitutional requirements of Article 141 of the 2016 Constitution as amended? It would help the reader to actually actively read that article. At the time our judges were appointed, did they qualify? If they were, it is the end of this discussion. If they were not qualified as per constitutional requirements, why were they appointed and did the appointing authority knowingly appoint unqualified people and should a president who violates the Constitution knowingly be impeached?
In a constitutional democracy, the judiciary especially that branch tasked with constitutional interpretation carries more weight in the scales of the balance of power, separation of powers and in the scheme of checks and balances, than in a scheme where there is no Constitutional Court. Knowingly appointing unqualified judges in violation of the Constitution is a weakening of democracy and destruction of the principle of separation of powers ab initio. It is a presidential power grab from the beginning. Judges appointed in such a scenario must be recalled, especially where there is ample unrefuted and unrefutable evidence as here deployed by John Sangwa. The origins of the current crises in the ConCourt go back to this original sin.
There is no provision for recalling of judges. Sangwa alludes to the fact that the judges accepted these appointments knowing they were not qualified. Is this discreditable conduct? Can that charge be disputed? The President and the ConCourt remained mute. Instead, they indirectly criticised the messenger but not the message.
In the US, judges in states where judges are elected rather than appointed can be recalled. There are mechanisms for recalling judges. Judges in Zambia are not elected so there is no mechanism to initiate a recalling petition. In South Africa, there was wholesale reorganisation and transformation of the judiciary after the defeat of apartheid. That process was possible