Constitutional Court Judges

ACADEMIC and law lecturer Munyonzwe Hamalengwa says decisions of the highest courts in the land can be wrong and have sometimes been wrong.

In his weekly column published every Monday, Dr Hamalengwa said the decisions in Danny Pule, Bampi Kapalasa and Busenga are examples of wrong decisions.

The Constitutional Court of Zambia in 2019 rephrased the question of whether President Edgar Lungu was eligible for election in 2021 by asking itself whether the term of office that straddled two constitutional regimes was a full term.

The ConCourt answered its question that the period January 2015-August 2016 did not make for a full term because it was less than three years.

And this Wednesday, the ConCourt dismissed a petition by Kapalasa, a UPND member of parliament and a Lusaka resident Joseph Busenga, who wanted to know whether President Lungu was eligible for election having been elected and sworn in office twice as President and will today give its reasons.

But Dr Hamalengwa said courts do make wrong decisions, especially with regards to election politics.

“The decisions of final courts are therefore not necessarily always correct. This is not a hypothesis. I posit that the Danny Pule, Kapalasa and Busenga cases are wrongly decided. These election petition cases were incorrectly decided,” he said.

Dr Hamalengwa argues that a loss in the court of law or the apex court could be a win in the court of public opinion, “the highest court in the land because it is the court that votes”.

“That courts of both original and final jurisdiction and of only final jurisdiction do not necessarily make correct decisions all the time can easily be supported by a few illustrative examples,” Dr Hamalengwa said.

He said bad decisions create bad precedents.

Dr Hamalengwa said the silver lining was that a defeat in a court of law, through a wrong decision, does not mean a defeat in the court of public opinion.

“A defeat in a court of law can be a win in the court of public opinion. When the Chief Justice of the US wrote a majority decision in 1857 in the Dred Scott case upholding slavery, there was a firestorm of criticism and a groundswell of support against slavery that Abraham Lincoln, a perpetual loser in presidential and congressional elections since the 1830s, capitalised on to propel himself to the presidency in 1860,” Dr Hamalengwa explained. “Civil Rights reconstruction of the 1860s and 1870s were the reverberations of the unpopular Dred Scott decision of 1857, which had held that a Black person was not a human being and had no rights that a white person could recognise and respect.”

He posited that courts could be the most reactionary institutions of the law and were most dangerous when they collude with the powers that be in society especially in presidential election petitions “when courts of justice can become courts of injustice or when courts of justice become tools of oppression and repression.”

He said when the final courts make a wrong decision, legal positivists recommend forgetting and moving on.

“If people forgot and moved on, slavery, colonialism and apartheid would still be in existence. I have written about this severally. We would still be governed by wrong decisions of the final courts of slavery, colonialism and apartheid that held that the constitutional provisions don’t matter, that it is okay to be discriminated against, that injustice is okay,” Dr Hamalengwa said. “People didn’t lay down their weapons to fight wrong and unconstitutional decisions of the apex courts.”

He said some wrong decisions were later overruled because they had been wrongly decided.

“I hold that the Danny Pule, Kapalasa and Busenga cases have been wrongly decided. They were based on a rephrased question not submitted by the litigants and they applied the new Constitution retroactively, a forbidden method of constitutional interpretation,” he said. “The court further collated ‘term of office’ with ‘holding office’ which don’t mean the same thing under any circumstances. And articles 106(3) and 106(6) are stand-alone paragraphs because of Article 7 of Constitution Act No.1 of 2016 which states that the new President completes the term of office of the departed President pursuant to the previous constitution, 1991 as amended by the 1996 one, not according to the 2016 amendments.”

Dr Hamalengwa said President Lungu was elected under the old constitution.

“This is not water under the bridge. If the ConCourt was not a final court, this decision would have been set aside by a higher court. It is wrong. And final courts sometimes make wrong decisions as discussed in this submission. I have made my case. I respectively dissent from the Danny Pule, Kapalasa and Busenga judgments,” said Dr Hamalengwa.


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