Is there a more controversial and litigated constitutional case in Zambian history than the Third Term one? A reply to Dr Lawrence Mwelwa’s critique of my 2023 article
By Prof Munyonzwe Hamalengwa
Is there a more controversial and more litigated public interest or constitutional case in Zambian history than the third term one involving Edgar Chagwa Lungu?
That is the foundation of my article Dr Lawrence Mwelwa was contending with but never succeeded in dealing with the foundation that prompted me to deal with that question. In my article I posited a thesis that based on numerous precedents that I provided (and Dr Mwelwa only isolated two of these while I provided a more robust number) the third term case lends itself to vacation in future. It meets all conditions for vacation. It is widely a controversial case, heavily debated by the public, dissected by so-called experts and so-called non experts, it arouses strong public feelings, and most important there are strong undertones in the public debates and in the strongest of dissents by a justice or justices that the case was wrongly decided. The case continues to reverberate into the immediate and foreseeable future. The precedents I cited like Dred Scot (1857); Plessy v. Ferguson (1896); Korematsu v. US (1943); The Canadian Internment case (started politically in 1944 and ended with compensation in 1988 without going to court); Roe v. Wade (1973) and others provided the fodder for my analysis. Nowhere does Dr Mwelwa attack the foundation of my analysis, the basis of my theoretical foundation. He glides over my analysis and comes to the conclusion that my article is merely a partisan alignment with emerging political forces, without untangling my thesis with the precedents that I have cited. He further analyses that what I am trying to do is to undermine judicial stability and independence by positing that the precedent should be vacated. He points to the timing of my article written in 2023 as evidence of his analyses given the ongoing proceedings in court without delving into scholarly territory that for academia there is no prohibited territory for investigation just as law does not stop to operate even in times of emergency (see Liversidge versus Anderson as per Lord Atkin, 1944).
My article came out in 2023 and Dr Mwelwa waits for one year to critique it and guess what is afoot on the third term precedent close to Dr Mwelwa’s article? Whose timing is deliberately intended to influence the outcome? Dr Mwelwa never mentions that I have been writing on the judiciary since 1986 on different topics involving the judiciary and on various forums including the Canadian Lawyer, Lawyers Weekly, Law Times, Contrast Newspaper, Diversity News, Pride Magazine, Toronto Star, For the Defence, The Post (Zambia), African Letter, Pambazuka, Daily Mail, The National Post (Canada), Law Union News, etc, and my 589-psge book on the judiciary. I am into the business of writing including on the judiciary. There is no narrow partisan agenda involved. I have been writing on vacation of precedents, on judicial dissents, on diversity, on competence and incompetence of the judiciary, on appointments, term limits, independence, accountability etc before the third term case came along. I even criticised the Supreme Court Mazoka v. Mwanawasa decision when it came out and predicted that some African court will in future set a precedent that would correct such decisions like Mazoka that missed an opportunity for a ground breaking paradigm shifting decision. The Kenyan Court (2017) and the The Malawi Court (2019) corrected the African judicial misbehaviour in election petition cases.
We should not privilege wrong Constitutional Court decisions on the basis that we are undermining judicial stability and independence and we are threatening the rule of law. There is no evidence that that is my intention. If anything, I am fostering judicial stability, judicial independence and stability, and rule of law by insisting that judicial decisions must be based on the law and not political considerations that take into account the appointing authority. The third term precedent is erroneous ab initio. Lungu came into power through the 1996 Constitution and was and is bound by the structures of that Constitution. Even Articles 2 and 7 of Constitution Amendment No. 1 of 2016 are clear on this. The Constitution does not apply retroactively and clearly left out Lungu from the application of the Constitution Amendment No. 2 of 2016 properly scrutinised using proven constitutional interpretation frameworks, no matter how clever the drafters thought they would include and protect Lungu in the drafting. Read the analyses of the Amicus brief of the externally based Zambian law professors: Chaloka Beyani, Cephas Lumina and Kelvin Mbao. The ConCourt refused to entertain the Amicus brief. Read the objective and professional opinion of Mr Elias Chipimo Junior at the time of the debates.
Dr Mwelwa’s critique entirely eschews my submission that one of the justifications for the need to vacate the decision is because it was an erroneous decision. The Constitution is clear and our courts have so stated as well that a decision can be vacated in the interest of development of jurisprudence and in the interest of justice (see recently Hakainde Hichilema and Geoffrey Bwalya Mwamba). Vacating precedents is sparingly used and is rare and has never been a threat in Zambia or any country to judicial independence, judicial stability or rule of law and has never devolved into judicial malleability to swing in the interest of political interests as claimed by Dr Mwelwa. If anything, it is the continuing constitutional amendments that try to favour every incoming regime that must be feared and not the vacation of erroneous precedents which are rarely made in Zambia, Canada or US etc. Every regime in Zambia tries to amend the Constitution. Consider the ramifications of Bill 10 of 2019 if it ever succeeded.
Dr Mwelwa also does not dwell squarely on my analysis of the importance of powerful dissents that empower future vacation of precedents. I didn’t create that. Powerful analyses on this are littered in books like “Scalia Dissents” and “How Judges Think”. Such analyses have no partisan interests.
Dr Mwelwa also fails to deal with vacation of wrong precedents by presidents including President Reagan creating a commission of inquiry to examine the Korematsu case and Prime Minister Brian Mulroney who set a commission of inquiry to examine the erroneous and unjust internment of Japanese Canadians during the Second World War. Reagan and Mulroney compensated the wronged. Vacation of bad precedents is not only a matter of the judiciary, leaders can and have been involved as well.
Dr Mwelwa eschews to analyse this fertile ground of judicial or political vacation of bad judicial or political precedents. These are no threats to judicial independence or judicial autonomy or stability. They are vehicles for correcting past injustices from wrong or bad precedents. They are vehicles for imparting justice and accountability.
There is another route that is common in Canada. A judicial process embedded in legislation that facilitates reopening of suspected wrongful convictions. A number of wrongfully convicted have been exonerated using that process. Re-examining suspected wrongful convictions in an attempt to provide justice is not a threat to judicial finality, judicial independence, autonomy or stability. It is a powerful tool for judicial accountability and provision for the ascertainment of justice
Dr Lawrence Mwelwa need not fear the vacation of wrong precedents. How many times has the third term precedent been challenged in court: 3, 4,5 etc times? That is how controversial that precedent has been. It is the stuff of which attempts to vacate that erroneous precedent is made of. Justices have been complained against by ordinary citizens because of that precedent directly or in part. Some justices have been dismissed because of that precedent in part. There is no other precedent in Zambian judicial history as controversial and so much litigated as the third term precedent. That is where we started the article and that is where I will end it.
The author teaches Law of Evidence, Criminal Law and Research Methodologies in Law. Email:
munyonzwe.hamalengwa@zaou.ac.zm