CELEBRATING DEATH PENALTY REMOVAL WITH JUDGES
By Dr. Fred M’membe, President of the Socialist Party
Our judges should not only be independent from the executive, the President, but should be seen to be so by the public.
And they have individual and collective responsibility to protect or guard this independence. This means that they have the individual and collective responsibility to decline invitations to executive, State House functions that may be seen to compromise their independence. It’s not an offence for judges to stay away from State House invitations.
The other day, Mr Hakainde Hichilema was asking where the Chief Justice was at the swearing in of the new Director of Public Prosecutions at State House as if it was mandatory for the Chief Justice to attend that function – it wasn’t.
Judges should not be at the beck and call of the President. It seems Mr Hichilema thinks judges are part of his team of servants who serve at his pleasure. They are not his employees.
The further away judges are from the reservation seats of State House the better, and Isaac Mwanza has written a brilliant piece on this score. Starting with a quote from Jonas Zimba: “When the executive and the judiciary start singing from the same hymn book know that citizens are in trouble”, he wrote:
“When I saw judges joining in the luncheon to celebrate the removal of the death penalty, my mind’s eye immediately peeped into the workings of the United States justice system, to see the reaction of both the nine judges of the Supreme Court of the United States, referred to by the acronym ‘SCOTUS’, and the American public, in the event that President Joseph Biden invited the revered SCOTUS judges to luncheon to celebrate the passing by the US Senate, and his signing a law to codify abortion rights in all 50 States of the Union. Of course, such may never happen in the US for obvious reasons.
“The issue of abortion in the United States, just like the repeal or abolition of the death penalty in Zambia, is a highly contentious issue among lawmakers and the citizenry, based on various considerations, legal, political and religious ideologies.
“In Zambia, if a poll was to be taken today among members of professional bodies, such as the Law Association of Zambia (LAZ), on whether the death penalty should be abolished, it would show a divided opinion among legal practitioners, but usually it’s the decision of the majority that takes precedence. It is unknown though who the majority are in the case of the death penalty, but that is a story for the third series.
“In a functioning democracy, however, the minority have a right to petition the courts with a reasonable expectation that judges do not have a position on matters brought before them for adjudication. This is why, there is a 0.0001 percent chance that judges of the SCOTUS will join the executive in celebrating the passage of the law to make abortion legal in the United States, and it would actually be unfair for the Justice Department to send invitations to SCOTUS to join in the celebration by the executive because the question will eventually require them to make a decision on the very question.
“If asking questions is still permissible in Zambia, the question would be: how does one aggrieved with the decision to remove the death penalty expect judges of the superior courts who, yesterday were celebrating the removal of death penalty at the luncheon, fairly adjudicate disputes taken before them over the same matter? Impressions do matter here.
“By joining in the celebrations at State House, the judges can be seen to have overtly taken a position on the matter.
“However, it is my humble view that the decision to invite judges to the dining table by and with the executive, who included the Attorney-General, Director of Public Prosecutions, representatives of investigative wings, such as Anti-Corruption Commission etc, to celebrate the passage of legislation, is of great concern and a worrying matter for many who litigate against the executive. This joint celebration paints the unfortunate picture that the judicial branch and executive branch are now ‘on the same page’ or all singing from the same sheet, and that this camaraderie between the two may result in the judiciary being unwilling to hold their newly found friends in the executive branch to account as intended by our very Constitution.
“Cabinet Office must avoid the temptation of inviting judges to attend events that celebrate decisions made by either the executive or the legislature on contentious matters that are likely to land back in courts for adjudication.
“Our judges are the last line of defence against legislative or executive encroachment on our rights as citizens and it is a very worrying scenario when we witness this camaraderie between our governors with our judges, to whom aggrieved citizens must go for succour and whose impartiality on any topic must never be perceived, let alone seen, to be compromised when we witness our judges being wined and dined by the executive.
“It is an adulterous relationship – adulterous in the sense that judicial independence may indeed be adulterated by an unwelcome friendship between our governors and the ultimate protector of our rights, namely, the courts.
“In future, it is important for the Cabinet Office to learn from other countries on who they should invite to such celebrations. If such similar celebrations on signing a law to codify abortion rights or abolish the death penalty or enactment of laws to protect the practice of homosexuality in the US was to be hosted by the US President Joe Biden, it certainly would not involve judges of the SCOTUS, or the heads of the investigative and prosecutorial organs of the federal state, but would have targeted family members whose loved one had been on death row or some specific community that has a cause to celebrate. I am sure the SCOTUS judges would themselves have decided not to attend the celebration.”
Brilliant!
The greatest threat to the independence of our judges lurks in the executive.
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