When the first female Justice, Madam Bertha Wilson, appointed to the Supreme Court of Canada wrote an article entitled, “Will Women Judges Make a Difference?”, a new avalanche of literature on feminism was unleashed across the world. Up to that point in the 1980s, there were very few female judges in most, if not all countries, in the world, especially in the Supreme Courts or apex Constitutional Courts. The emerging feminist movement resulted in the wholesale doubling and quadrupling of female applicants to law schools and judicial appointments of females to the judiciary. That movement culminated in the appointment of female chief justices in many countries. Africa had its share of female chief justices. It even reverberated in the election of female presidents of different countries on the assumption that female presidents, female ministers, female MPs, female prosecutors, female doctors, female CEOs etc would make a difference. This question continues to resonate in modern times because the continuing dominance of men continues to make the question relevant.
The question of whether female judges would make a difference has not been so far conclusively answered in every country.
Different studies continue to reveal the different answers in each country and each epoch. Some of us branched into other relevant genres of the same question but focusing on whether judicial diversity would make a difference noting that judges in the Western World and Apartheid South Africa were overwhelmingly white including white female judges. White judges whether male or female did damage to racial minorities and Aboriginals in the Western World and Apartheid South Africa.
Along the way, questions have been asked along the same limb, especially noting that the new President and new Vice-President of the United States are both lawyers; whether Lawyer Presidents make a difference in the governance of the country. Lawyers being studied in Constitutional Law should be able to respect the Constitution, especially after swearing on the oath to owe allegiance to its stipulations that elevates the rule of law over the rule of men/women, the thinking goes. The thinking is elicited that lawyer presidents should be better governors because of their schooling in law and constitutional law in particular.
When confronted with the question whether lawyer presidents would be different than non-lawyer presidents, there is a temptation into empiricism: to choose one example and generalise that example to be applicable to all lawyer presidents. It is in the vein of empiricism to choose the worst examples and then to generalise. It would not adequately answer this complex question, for example, by pointing to President Edgar Lungu’s violation of the Constitution by not handing over power to the Speaker during the Presidential petition in 2016 and his intention to run again when he has held office twice and therefore prohibited from running again even after the transitional provisions of the Constitution counted his completion of the Michael Sata term as a full term, to now use the Lungu example to tarnish the image of all lawyer presidents as unfit to govern because they will violate the constitution. Along the same vein, one cannot generalise from the experience of the disastrous businessman Trump’s Presidency that all businessmen and women presidents would be unfit to govern. The fact that Iron Lady Prime Minister Margaret Thatcher, a female lawyer governed in a certain way in Britain does not mean that all female lawyer presidents will govern the same way or that all future actor presidents will govern the same way as actor president Ronald Reagan behaved on all issues.
The question whether female judges or lawyer or businessmen/women presidents make a difference from other presidents requires nuanced and comparative approaches and character probings.
Take the example of Zambia. Did President Mwanawasa behave like President Lungu? Is President Lungu behaving like President Mwanawasa? What are the similarities and differences? Would you say that because Mwanawasa behaved that way, all lawyer presidents in Zambia will behave that way? Did Lungu emulate the behaviour of Mwanawasa? Or that because Lungu violated the Constitution in not handing over power to the Speaker and intends to violate the Constitution again by running a third time, despite all constitutional prohibitions standing in the way, that all lawyer presidents in future in Zambia will behave the same way?
Africa has had different lawyer presidents: Mandela, Mwanawasa, John Kufuour of Ghana, Lungu of Zambia, Emmerson Mnangagwa of Zimbabwe etc; did they behave the same? Is Lungu an outlier in this group? What was the general denominator character behaviour of this group? Did they all behave like Mandela? Did this group violate their respective constitutions like Lungu has done and is about to do in Zambia? Not all lawyer presidents behave the same.
It goes the same in the United States. Richard Nixon was a lawyer. Barack Obama is a lawyer but did not violate the Constitution like Nixon did. He led a decent regime with lawyer Biden, a combo of lawyer president and vice-president like the current combo of lawyer President in Biden and lawyer Vice-President in Kamala Harris. There have been many lawyer presidents in the US: Lincoln, Kennedy, Nixon, the Bushes, Clinton, Obama and many others who behaved differently but who generally abided by the Constitution with one or two outliers. In general, lawyer presidents have done well in the United States. Those who violated the Constitution were made to account for it and justice was meted out.
Canada where I lived for 40 years and did all my post secondary education and a country I know intimately, has had a lot of lawyer Prime Ministers: Pierre Elliot Trudeau, Brian Mulroney, Jean Chretien, Kim Campbell, John Diffenbaker and many others all governed without breaching the Constitution; and generally along with the US can be used to answer the question in the affirmative: Do lawyer presidents Make a difference? It is my opinion that the lawyer combo of Biden and Harris will make a great presidency. And a great difference. They will abide by the Constitution and truly set themselves apart from the Trump Presidency where massive violations of the Constitution were the order of the day. Meanwhile in Zambia, our work is cut out for us. It is to take our Constitution seriously. To read it and understand it. And where it says a President who has held office twice must not run for a third time, we must take that seriously and make sure no one is above the Constitution that we gave ourselves in 2016. It is what it is.
Dr. Munyonzwe Hamalengwa is a Legal Affairs Columnist.
forthedefence@yahoo.ca/SM