It is my opinion that President Edgar Lungu has all of a sudden appointed three new judges to the Constitutional Court of Zambia in order to fortify his position in his unconstitutional bid for the third term of office.

Lungu, as always, is on all four cylinders to ensure that he muscles his way to remaining in power using all weapons, open or secret, legal or illegal, constitutional or unconstitutional, known or unknown. It is my opinion that one of those powers he has used or tried to use, is the judiciary centred in the Constitutional Court. I have no direct evidence of his use or attempted use of the ConCourt as his secret weapon to assume power or remain in power. But that direct evidence will one day come out. All I have is educated and speculative circumstantial evidence. Sometimes circumstantial evidence is stronger than direct evidence. Sometimes circumstantial evidence is all you have and by making logical inferences, it becomes clear that the only inference that can be drawn from the circumstantial evidence leads to that very conclusion and no other conclusion but that one, is possible.

This article opines that Lungu has a history of creating institutions including creating judicial institutions, or creating or attempting to create legislation (think of Bill No. 10 of 2019), appointing judges or other people (think of the change of governor at the Bank of Zambia); or issuing threatening statements against the judiciary (think of the Solwezi Airport statements just before the ConCourt issued the decision on his eligibility to run for a third term), or issuing sugar-coated statements like the recent announcements on judicial appointments; any time close to events that could decide Lungu’s fate whether he remains President or not.

In other words, Lungu always engages in serious maneuverings listed above and more just before events that could undo his fortunes happen. The major events include election outcomes or decisions whether he is eligible for an unconstitutional third term. It doesn’t matter whether some of these moves are buried within a mountain of other events or disguised in their operations or intentions, they are discernible to the discerning eye and to Lungu and his advisers. Pure gold and silver are extracted from rock and rubbish. Nuggets of truth can be hidden deep into lies and deception. So are Lungu’s moves which can be disguised and mixed with otherwise genuine or ingenuine moves.

Take the example of the recent judicial appointments to the ConCourt. They happened at the same time Lungu appointed three judges to the Court of Appeal and one judge to the Supreme Court. You would be lulled to sleep and you would never even suspect or summon a critical eye to analyse the confluence of events to inquire into the hidden maneuverings that Lungu appointed three judges to the ConCourt to act as his secret weapons in case his unconstitutional third term bid is challenged. Have you even thought about this? It appears so innocent, done in good faith and proper, isn’t it?

Lungu even talked about appointing more women for gender-balance, he even talked about considering finding resources to pay for judicial entitlements and building more courts and enhancing working space for judges and support staff. This is all good and commendable. But Lungu has been President for seven years. What has he done about judicial resources and building courts? During the same period he has wasted resources building show-case projects of flyovers and expanding roads towards where the rich live in Kabulonga and Woodlands, tearing down old environmentally friendly trees but without building proper pedestrian sidewalks where mainly the poor travel.

PF cadres are flash with cash and ministers donate cash like manner from heaven. The President has dished out bicycles, oil tankers, millions of dollars to his supporters and the partially inclined churches, they have bought overpriced ambulances and built chiefly palaces and his ministers have built college-like houses. Yet, it is only three months that Lungu has started talking about assisting the judiciary. The youth remain unemployed. Empowerment has gone to the cadres. All or most of that money could have gone to the judiciary, a very important arm of government in a democracy.

Lungu is quoted as stating the following: “The role of the judiciary particularly this year when our country is going to the general elections on 12th of August, will be critical as most political players and other stakeholders will seek different forms of court relief….”. So, election is upmost on Lungu’s mind but why appoint new judges barely four months before this very important election in which these very new judges will be required to make fundamental decisions of a constitutional nature?

New judges at any court level are inexperienced and tend to defer to current judges, are intimidated and tend to favour the executive; they don’t want to rock the boat and generally wish to please the appointing authority to whom they are indebted for their appointment. Unless they are a Thurgood Marshall, Antonin Scalia, Brian Dickson and other giants in the law, Lungu hasn’t given these judges breathing room to learn and become confident. Study after study demonstrates that new judges are timid most of their initial months in office, just like lawyers, teachers, engineers, MPs, doctors etc. It is human and natural.

Lungu unleashed a new judiciary at the ConCourt a few months before the election in 2016. The first decision was disastrous and we are still living with the consequences. They refused to issue an injunction against Ministers staying in power. The next major decision on the election petition was disastrous. They decided on a technicality even when Article 118(2)(e) says “justice shall be administered without undue regard to procedural technicalities…”. Is Lungu imposing three new members to get the same results favourable to him like before?

University of Zambia law professors have persuasively written that the ConCourt jurisprudence is strange. My view is that that court was imposed so suddenly before an election and their inexperience hobbled them from the beginning. It is my opinion. They have never recovered. Lungu is revisiting his strategy here again. It is my opinion.
Lungu appointed six judges in 2016, not seven as he now claims. The seventh judge was only appointed in late 2017 shortly before the court was to issue the eligibility for a third term decision. My opinion was and is that that judge was appointed to rescue Lungu from any negative decision. And Lungu issued threatening statements to the judiciary just before that decision.

Lungu acknowledges that the ConCourt is supposed to have 13 judges. Why hasn’t he appointed the full complement since 2016 or at least since 2017 when he appointed the seventh justice? Appointing three now on the eve of the election is circumstantial evidence that he wants an inexperienced judiciary that is malleable. Further, why can’t or didn’t he appoint all remaining complement to make it 13? Because he wants to appoint more a few weeks before the election or after the election to bail him out with their inexperience? This is my opinion.

Go back even to the beginning of Lungu’s presidency. He immediately appointed chief electoral commissioner, justice Ireen Mambilima, who later declared Lungu as President, as Chief Justice. He was already using the judiciary as his secret weapon to save him in case there were future challenging presidential petitions. This is my opinion.

The judiciary need not connive with Lungu. They need not know his motives but this is circumstantial evidence of his intentions and intended results and so far, he has succeeded one hundred per cent in his designs. But this is where the ball of success ends. Trump appointed three secret weapons but they sided with the Constitution and not Trump. The Supreme Court and Constitutional Court judges respectively of Kenya and Malawi chose the Constitution rather than the appointing authority; so will Zambian ConCourt judges henceforth, in my opinion.
Article 122 of the Constitution (2016) dictates: “(1) In the exercise of the judicial authority, the Judiciary shall be subject only to this constitution and the law and not be subject to the control or direction of a person or an authority” It is written in the Constitution that a person who has twice held office is not eligible for election as President. It is written in the law and in the skies. Guided by the law and Article 122(1) even a new judge in 2021 shall not be subject to the control or direction of a person or authority. Ceterisbus.

Dr Hamalengwa specialises on Justice and the Judiciary around the world. His 589-page book on the Judiciary is entitled, “The Politics of Judicial Diversity and Transformation” in which there are chapters on Canada, UK, USA, Australia, South Africa, Israel, Colonial and Post-Colonial Judiciary in Africa, on the Jury system and much more./EC


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