A critical response to Prof Hamalengwa’s article on Zambia’s Constitutional Court and the third-term precedent
By Dr Lawrence Mwelwa
Professor Munyonzwe Hamalengwa’s article, which suggests that Zambia’s Constitutional Court might vacate its third-term precedent regarding former President Edgar Lungu’s eligibility presents itself as a legal exploration of historical precedents and judicial dissent.
However, a deeper examination reveals that the article may be a preemptive maneuvre aimed at vacating prior judicial positions to serve evolving political interests rather than an objective legal analysis. By invoking cases from the US Supreme Court, Hamalengwa frames his argument within the narrative of legal change over time, but this approach appears to mask a potentially partisan agenda, which could jeopardise judicial independence and cast doubt on the integrity of Zambia’s legal system (Hamalengwa, 2023).
Hamalengwa’s article is framed as an academic discussion on precedent, dissent, and the dynamism of judicial rulings. Yet, it is hard to ignore the underlying implication that his argument may be influenced by political rather than purely judicial considerations. The author’s argument that the third-term precedent could and should be overturned appears to coincide with the broader political objective of preventing former President Lungu from running again, a matter deeply embedded in Zambia’s partisan landscape (Ndulo, 2019). By advocating for judicial change that aligns with current political sentiments, the article risks appearing as a rhetorical device aimed at influencing the judiciary in favour of the prevailing political climate, rather than an unbiased legal analysis.
The cases Hamalengwa references, such as Dred Scott v. Sandford and Plessy v. Ferguson, underwent judicial vacatur due to fundamental shifts in societal values and clear judicial missteps that were rectified after intense political and civil struggle (Schwartz, 1996). In contrast, the third-term ruling in Zambia lacks such historical weight or moral urgency. Rather, it reflects a straightforward constitutional question about term limits, a rule designed to maintain democratic accountability (Tshosa, 2001). Hamalengwa’s comparison to US precedents overlooks the vastly different contexts, suggesting a forced equivalence between cases addressing issues of civil rights and one aimed at adjusting term limits. By likening the Zambian court’s ruling on term limits to historically controversial US cases, Hamalengwa arguably overstates his point, as the constitutional implications of allowing a former president to seek re-election do not rise to the same level of urgency or moral controversy (Shivute, 2020).
Another notable issue in Hamalengwa’s argument is his emphasis on changes in the Constitutional Court’s composition as a reason for revisiting precedent. This emphasis seems to align conveniently with current political power dynamics rather than stemming from a purely jurisprudential perspective (Watt, 2012). When Hamalengwa argues that the court’s altered judicial composition could facilitate a change in precedent, he indirectly advocates for judicial manipulation through political appointments—an approach that risks weakening the court’s legitimacy and independence. By emphasising that dissenting opinions now find stronger support due to a more favourable bench, Hamalengwa’s argument suggests that judicial rulings are contingent upon the political preferences of appointees rather than sound legal reasoning.
This focus on judicial composition as a catalyst for change is problematic. Rather than highlighting legal merits or new arguments that have emerged since the precedent was set, the author suggests that Zambia’s judiciary is malleable and susceptible to political intervention. Such reasoning undermines the foundational principle that judicial rulings should be independent of political cycles and appointee changes (Ndulo, 2019). Hamalengwa’s suggestion that dissenting opinions may now gain traction due to a shift in bench composition could erode public trust in the judiciary, presenting a judiciary that may alter rulings based on the political orientations of its justices rather than the merits of cases (Watt, 2012).
While Hamalengwa attempts to frame his position as a scholarly take on the dynamics of judicial precedent, the timing and content of his argument suggest a potential alignment with political motives. His suggestion that the third-term precedent is no longer suitable because of Zambia’s “changed political environment” raises concerns about the role of the judiciary as a politically neutral institution (Shivute, 2020). Courts are intended to operate independently of prevailing political winds, upholding principles that transcend administrations. Hamalengwa’s argument, however, implies that judicial decisions should reflect the contemporary political landscape, a stance that could expose the judiciary to partisan interference and weaken its role as an impartial arbiter.
Moreover, Hamalengwa’s call for the Constitutional Court to accept amicus curiae briefs and dissenting opinions risks transforming Zambia’s judiciary into a reactive body swayed by external political forces. By advocating for a new hearing on the third-term precedent, Hamalengwa inadvertently promotes a form of judicial populism, where the judiciary is expected to align with public opinion or political pressure rather than adjudicate independently based on legal principles (Tshosa, 2001). This perspective invites undue political influence, reducing the judiciary to a tool for validating or countering political moves rather than serving as a steadfast defender of constitutional principles (Ndulo, 2019).
In conclusion, Prof Hamalengwa’s article, while crafted as a scholarly examination of judicial precedent, risks undermining the very judicial stability he claims to support. By focusing on politically convenient factors such as judicial composition, public opinion, and Zambia’s current political landscape, Hamalengwa’s argument appears more aligned with a preemptive political strategy than with a genuine legal inquiry (Shivute, 2020). His stance could encourage political actors to view the judiciary as a pliable entity, responsive to political changes and amenable to reconfiguring decisions based on partisan objectives. Such an approach could ultimately erode the Constitutional Court’s credibility, positioning it as an extension of Zambia’s political apparatus rather than an independent judicial body.
For the integrity of Zambia’s legal system, the judiciary must resist the pull of political influence, preserving its role as an impartial entity grounded in constitutional principles. While controversial decisions may sometimes warrant reconsideration, such moves must arise from compelling legal and social shifts, not political convenience. Hamalengwa’s article serves as a reminder that the judiciary’s role is to safeguard constitutional consistency and uphold the rule of law, irrespective of the prevailing political winds. To vacate the third-term precedent based on political dynamics rather than sound legal reasoning would compromise the very independence and stability that the judiciary must protect.
The author is an academician, politician, musician, and revolutionary writer. Send feedback to:
lmwelwa@gmail.com