Dr Lawrence Mwelwa, stop weaponising my name on the third term debate to advance your political, legal and scholarly battles. You can do it on your own: my last rejoinder
By Prof Munyonzwe Hamalengwa
Dear Dr Mwelwa,
Stop weaponising my name on the third term debate to advance whatever political, legal and scholarly battles you are involved in or pursuing.
You can ably do those battles on your behalf or on behalf of others on your motion. Even though I spotted your intentions a mile away, I had decided to ignore that aspect, albeit also pointed out by others, in hope that it will remain a scholarly pursuit. But when you start a devious veiled and unveiled scholarly mischief and weaponisation, I have to jump in and say, enough is enough.
In your article of December 25, 2024, a Christmas Day of all days, you state the following:
“Professor Hamalengwa claimed a significant academic victory by reflecting on the outcome of the Chizombe case.”
You further go on to state that in celebrating the victory, Professor Hamalengwa “position[ed] himself as a pivotal voice in Zambia’s evolving jurisprudence”. What you said here is what compelled me to issue this brief reply. What you have said here is simply a baldfaced academic and scholarly invention, misrepresentation and mischief. You want to use my name as a continuing lightening rod for your battles and positioning. You want to create a mountain or monument that you can continuously beat against to promote your own agenda. Read the article two more times: where do I claim a pivotal role and academic leadership in this debate? Where do I ululate about the victory? I totally reject your after the fact concoction. Let’s stick to the scholarly debate template.
In the impugned article all I said principally was itemising once again the observable signposts igniting and later on establishing a vacated precedent and I further added two more “principles”: 1. Unprecedentedly controversial legal decision, 2. Significant ferment in the expert and none expert opinion signalling the precedent as a wrong decision, 3. Dynamic ringing dissent by a judge or judges, 4. Changed political regime, 5. Changed judicial composition, 6. Emergency of an enigmatic litigant, and 7, the presence of a dynamic advocate.
You have as yet failed to deal with this independent schema that characterises a vacated precedent. Mentioning these characteristics is not favouring “political expediency”. Where in these characteristics is political expediency? Wrong precedents in fact violate “constitutional fidelity”. For example, Danny Pule ignored the implications of Article 35 of the 1996 amended constitution, it violated the meaning and spirit of Articles 2&7 of Constitution Amendment No. 1 of 2016. You have refused to come to terms with the wrongness of Danny Pule, but instead you choose to beat the drum of the non-existent “political expediency” which is your creation. Wrong precedents violate the principles you hold so dear in the vacuum: judicial stability and constitutional fidelity. Judicial stability does not sit well with wrong precedents. In fact, your judicial stability ought to be disturbed in order to cure a wrong precedent.
Dr Mwelwa, you ignore entirely the political and judicial context in which Danny Pule was created, it was created in the context of “political expediency” in which the former president threatened the judiciary while at an airport in Solwezi that there would be chaos if the Zambian judiciary went the way of the “Kenyan judicial adventurism”. What was stated there has been oft-quoted and is available. At that time the judicial composition was about half it’s supposed full compliment. You know the debates about that judicial composition. There was no “judicial stability” considered in a broader contemporary context. Where was the judicial independence in that political context? There was no judicial independence. That decision, Danny Pule was made under orders and duress. The judiciary failed to protect the constitutional order at that time and failed to correctly interpret the constitution because of the political context existing at time. Dr Mwelwa has utterly failed to introspect on the existing political, legal and judicial context in the period 2015 to 2021. Once Dr Mwelwa does that, he may be more nuanced in his analysis.
Dr Mwelwa quotes Chief Justice Dr Mumba Malila SC where he stated, “judicial independence must be practised through decisions rooted in the law, not swayed by political sentiment”. The Chief Justice is right but Dr Mwelwa is wrong. The quotation and others from the Chief Justice do not support Dr Mwelwa’s analysis. The Danny Pule decision was not rooted in law, of Article 35 of the 1996 Amended constitution or Articles 2&7 of Constitution Amendment No. 1 of 2016 but was based on political sentiment and pressure on the judiciary exerted at Solwezi airport by the then president. The Chief Justice from reading his three books that I have plus his article on judge Clever Musumali and other articles, truly supports judicial independence and the rule of law in practice and not in the abstract. Whatever happens, however, my 7 “principles” that characterise vacated precedents remain undisturbed because they are independent of Dr Mwelwa’s analysis. Some of his concerns reflected in the precedents of Dred Scot, Plessy etc are contained in “principle“ No. 1, No. 2 or No. 3, is: “Controversy” “Prominent opposition” or “Judicial dissent” or not related to similar cases to be decided similarly.
There is no way I could claim a pivotal role in that debate except in your universe for political, legal and scholarly purposes already pointed out. Leading lawyers and academics held sway: Professors Muna Ndulo, Melvin Mbao, Cephas Lumina, Chaloka Beyani, Dr O’Brien Kaaba, and others opposed the Danny Pule precedent. Constitutional lawyers John Sangwa SC, Elias Chipimo Jr, Linda Kasonde opposed the decision. Prominent academic Dr Sishuwa Sishuwa opposed the decision. Mases of public opinion on social media opposed the decision. Many other columnists including myself opposed the decision. The only claim I could make is that I have been consistently writing on the judiciary and many legal issues since my law school days decades ago in Canada and I have penned hundreds of articles on judicial dissent, judicial diversity, judicial appointments and related legal issues. I didn’t just start now.
I also admit to the reality that as an academic and scholar, I do read and write in order to inform, participate, educate, influence and affect public opinion and the opinion of decision makers including the judiciary. There is no scholarship devoid of this. But, in my articles I never claimed that I was the pivotal voice in the third term vacation debate. This is my last reply to Dr Mwelwa’s ruminations.
The author continues to research on the judiciary and on numerous other legal issues. He teaches criminal law; jurisprudence; intellectual property; medical law and research methodologies in law in Zambia. Email: munyonzwe.hamalengwa@zaou.ac.zm
Well said Ba Professor. This Dr. Mwelwa is indeed trying to gain political relevance through your articles but as we have told him, he does not belong to your learned legal scholary. He was quoting the Chief Justice out of context and absolutely no legal skills to interpret let alone understand the JUDGMENTS, particularly the recent ConCourt JUDGMENT. It is for the learned. Well done Badaala.