Continuing lessons from the vacated controversial and legally unsound judicial precedents: Danny Pule and others
By Prof Munyonzwe Hamalengwa
The recent judgment in the case of Michelo Chizombe -and- Edgar Chagwa Lungu et al (2023/CCZ/0021) which vacated the previous precedent of Daniel Pule -and- Attorney General et al (2017/CCZ/004) has given us another opportunity to reflect further and ferret out more “principles” that underlie most if not all vacated precedents. Before the judgment in the Chizombe case, we had deduced five “principles” that are revealed that underpin a vacated precedent. In summary these are the “principles”:
1. That the precedent was mighty controversial raising continuing reverberations in its wake.
2. The precedent is condemned strongly by a section of the highly regarded legal experts and informed public opinion that the precedent is wrong in law.
3. There is a very strong dissent within the panel of judges that decided the precedent.
4. The precedent continues to reverberate and gets overturned under a new regime.
5. The precedent is litigated for vacation during a different composition of the judiciary which overturns it.
I gave examples from different jurisdictions and different types of cases. The way I use precedent is not necessarily based on similar cases being decided with similarity. That is too narrow a definition. This article puts forward two further principles that underlie vacated precedents, making it seven in all, of principles that must underpin the vacation of a precedent. All vacated precedents have contained these additional two “principles”.
I summarise these two extra ‘principles” herein. They are the 6th and 7th “principles”
6. The emergence of a new durable, viable, strong and enigmatic litigant. The litigant can be an individual or an interest group.
7. The representation of the litigant by a towering and legally tenacious advocate who goes outside the box to win the case.
I elaborate these two additional principles below.
The emergence of a new litigant to vacate the precedent is also related to the manner in which the precedent was set in motion in the past. There was that enigmatic litigant who was criminally charged or who decided to bring a challenge to the existing law or public interest issue. This litigant whether it is a matter of establishing the precedent or vacating the precedent is a pioneer in many ways.
Sometimes these litigants are happenstance of circumstances, sometimes they are captives of various warring combatants. However, they come to establish or vacate these precedents they perform a very useful public service in the development of the law and in mobilising legal consciousness about the issue in litigation.
In establishing the third term precedent, we can study how Danny Pule became the torch bearer of the precedent that has just been vacated. In other countries, there would have been articles or books or movies about how Danny Pule sucked himself or was sucked into the vortex of establishing that precedent. On the other hand, we have Michelo Chizombe who decided whether on his own or recruited by interest groups to challenge the Danny Pule precedent leading to its celebrated vacation. In other jurisdictions, Chizombe would be a subject of articles, books or movies about how he became a tool for affecting or effecting the trajectory of Zambia’s political future. Pule managed to get Lungu on the 2021 ballot box. If Lungu won as a result of the Pule precedent, the history and future of Zambia would be different. Chizombe has legally managed to get Lungu off the 2026 ballot, changing though as yet unknown parameters, Zambia’s future.
The point never to be forgotten is that whatever precedent is established, there was a human being or human beings that ignited the flame that established the precedent and whatever precedent was vacated the same process was engaged in by an individual or individuals. Usually, history books initially record the propensities or uniqueness or savviness of the judiciary that established or vacated the precedent, at the expense of highlighting the foot soldiers that brought the seeds of the precedent or it’s vacation in the first place. Both entities are important to highlight. Those who bring about precedents or the vacation of precedents are usually pilloried, mocked, celebrated or abused. They serve a very important role in a democracy. They make democracy go round.
The seventh principle relates to the advocates who are involved in the establishment or vacation of precedents. These advocates are crucial bridge builders in the quest for engaged democracy. Here I wish to highlight the significance and importance of having enigmatic, studied and relentless advocates who are responsible for the vacation of bad, wrong in the law, precedents. I single out Thurgood Marshall, the lead counsel in the vacation of Plessy -and- Ferguson case of 1896 which had provided for “equal but separate” doctrine.
Marshall was not an ordinary lawyer. A lot of books have been written about him as well as about his group, the legal fund of the National Association for the Advancement of Coloured people. Books about Marshall who became the first Black judge at the Supreme Court of the United States include such titles as: “Warrior at the Bar and Rebel on the Bench”; “An American Revolutionary”; “Crusaders in the Courts”; “Justice for All” and others. There is a reason to celebrate advocates who overturn bad precedents. They are against a bench that has been trained to respect and be beholden to current precedents. Many judges find it difficult to look back into history and peer through the rough castings of bad precedents. On this, see Richard Posner, “How Judges Think”; Robert Martin “The Most Dangerous Branch”; Michael Mandel “The Legalisation of Politics in Canada” and many other books.
For an advocate to stand before the bench and to look in their eyes and tell them that the long held precedent of their brothers and sisters was wrong per incuriam and must be vacated, is no ordinary task. Vacating is not an appeal it is vacation of a bad precedent.
These crusaders in the law must be celebrated. Most have been celebrated. I don’t know what will happen to Michael Moono who advocated the vacation of Danny Pule on behalf of Michelo Chizombe. Next week I will hopefully write about the gigantic importance of the vacation of Danny Pule, a truly bad precedent per incuriam.
Professor Hamalengwa is Dean of the School of Law at Zambian Open University. He teaches Criminal Law and Law of Evidence in Law School. He also practised Criminal Law as defence counsel at the highest levels for 25 years.
Email: munyonzwe.hamalengwa@zaou.ac.zm
The law was made for man. For the benefit of mankind.
Not man for the benefit of the law.
So there goes the fleeting “supremacy” of the precedent.
Alor of waffling and very little substance. The writter needs to apply himself and mind. He repeates himself without substance. Was he drunk? Expect a better written article with well articulated ideas, but left reading a sub standard version of language that seems lefted of a “Mills and Boon” or a terrible “James Hardley Chase”. His thesis advisor would be “bawling at this”.