Is there a more controversial and litigated constitutional case in Zambian history than the third term one? A reply to Prof Hamalengwa’s critique of my article
By Dr Lawrence Mwelwa
Let me begin my response by humbly acknowledging that I am not a learned counsel in the traditional sense of formal legal training. Instead, I am a devoted political scientist with a deep commitment to the study of leadership and the principles of constitutionalism. The delay in addressing Professor Munyonzwe Hamalengwa’s article was deliberate, as I waited nearly a year in the hope that his learned colleagues in the legal field would take up the task of addressing the inaccuracies and misrepresentations in his arguments. However, in the absence of such a response, I feel compelled to step in—not to influence the judiciary in any way, but rather to exercise my intellectual and academic freedom in engaging with these issues constructively and critically.
Prof Munyonzwe Hamalengwa’s article advocates for vacating Zambia’s third-term precedent established in Danny Pule and Others v. Attorney General. While he frames his arguments in the context of dynamic judicial processes and international jurisprudence, his position, upon closer scrutiny, lacks sufficient legal grounding and risks undermining the judiciary’s independence. Below, I provide a detailed critique of his argument while substantiating my own position with relevant legal principles, precedents, and scholarly perspectives.
1. Dismantling the claim of unchallenged theoretical foundations
Prof Hamalengwa’s assertion that “Nowhere does Dr. Mwelwa attack the foundation of my analysis, the basis of my theoretical foundation” is both inaccurate and dismissive of the substance of my critique. The foundation of his analysis, which rests on the premise that the third-term precedent in Danny Pule parallels historical cases such as Dred Scott and Plessy, was directly challenged in my initial response. I demonstrated that his reliance on these precedents fails to recognise the significant differences in context, legal principles, and societal impact. Unlike the moral and civil rights crises that necessitated the overturning of Dred Scott and Plessy, the third-term precedent in Zambia addressed a constitutional interpretation question grounded in clear legal principles without infringing on fundamental human rights. By failing to substantiate how the Zambian precedent rises to the same level of historical injustice or moral urgency, Prof Hamalengwa’s argument collapses under its own weight. My critique attacked this theoretical underpinning by emphasising that judicial decisions must be evaluated within their specific sociopolitical and legal contexts, not forced into inappropriate analogies to bolster a weak case for vacatur. Prof Hamalengwa’s failure to adequately address this contextual dissonance undermines the credibility of his foundational argument, leaving it vulnerable to critique
2. Misapplication of international precedents
Prof Hamalengwa’s reliance on international precedents such as Dred Scott v. Sandford (1857), Plessy v. Ferguson (1896), and Roe v. Wade (1973) is intellectually engaging but contextually flawed. These cases represent decisions that were vacated to rectify deeply entrenched societal injustices, such as racial segregation and reproductive rights. Their historical significance stems from the grave violations of fundamental human rights they perpetuated and the moral imperative to correct them.
By contrast, the third-term precedent in Danny Pule was neither a violation of fundamental rights nor a miscarriage of justice. It was a reasoned interpretation of the Zambian Constitution, particularly Article 106(3), which defines a presidential term. The court clarified that serving less than three years of a term does not constitute a full term. This was a constitutional question, not an issue of human rights deprivation. Equating the third-term precedent with the injustices addressed in Plessy or Dred Scott overstates its significance and introduces a false equivalence.
Furthermore, judicial decisions in the aforementioned US cases were overturned due to broad societal consensus and shifts in legal philosophy (Brown v. Board of Education, 1954; Dobbs v. Jackson Women’s Health Organisation, 2022). Zambia’s third-term precedent, however, enjoys constitutional clarity and has not elicited a comparable moral or social consensus for reversal. This distinction is critical, as courts must operate within the bounds of their legal frameworks and societal contexts (Dworkin, Taking Rights Seriously, 1977).
3. The Rights of officeholders and the rule of law
Prof Hamalengwa’s argument overlooks the critical issue of safeguarding the rights of officeholders to serve their constitutionally mandated terms. Article 106(6)(b) of the Zambian Constitution explicitly provides that serving less than three years does not disqualify an individual from standing for re-election. This provision reflects a deliberate legislative choice to balance democratic accountability with the rights of officeholders.
The Constitutional Court, in Danny Pule, correctly interpreted this provision to uphold the principle of legal certainty. This aligns with international standards that emphasise the importance of predictability in the application of the law (Fuller, The Morality of Law, 1964). Vacating this precedent would not only undermine the rights of potential candidates but also destabilise Zambia’s constitutional framework.
Additionally, the argument that vacating the third-term precedent is necessary for “justice” ignores the broader implications for the rule of law. Courts must exercise restraint in overturning precedents unless compelling new evidence or legal grounds emerge (Cardozo, The Nature of the Judicial Process, 1921). In the absence of such grounds, judicial decisions should stand to maintain legal stability and public confidence.
4. Judicial independence and public trust
Prof Hamalengwa’s suggestion that changes in the Constitutional Court’s composition could facilitate the overturning of the third-term precedent is deeply concerning. Judicial independence, a cornerstone of democracy, requires that courts operate free from political or public pressures. The argument that a “changed bench” might deliver a different outcome implies that judicial decisions are contingent on the political leanings of judges rather than sound legal reasoning. This perspective risks eroding public trust in the judiciary. As the Supreme Court of Canada emphasised in Reference re Secession of Quebec (1998), the legitimacy of judicial decisions depends on their fidelity to the rule of law, not their alignment with prevailing political sentiments. By framing judicial change as an opportunity to revisit established precedent, Prof Hamalengwa inadvertently undermines the judiciary’s impartiality and credibility.
Moreover, the invocation of dissenting opinions as a basis for vacating precedent, while theoretically valid, requires caution. Dissent is an integral part of judicial discourse but does not automatically invalidate majority rulings. The dissent in Danny Pule is no exception. While dissenting opinions can guide future legal developments, they must be evaluated within the broader context of legal stability and constitutional integrity (Scalia, Scalia Dissents, 2004).
5. The Danger of Judicial Populism
Prof Hamalengwa’s call for the Constitutional Court to entertain new arguments and accept amicus curiae briefs to challenge the third-term precedent raises important questions about the role of external inputs in judicial decision-making. While such inputs can enrich judicial deliberations, they must not supplant the court’s primary obligation to interpret the Constitution impartially.
Judicial populism—where courts align their decisions with public opinion or political pressures—poses a significant threat to the rule of law. The judiciary’s legitimacy rests on its ability to deliver decisions grounded in constitutional principles, not transient political considerations. As Chief Justice Marshall articulated in Marbury v. Madison (1803), “It is emphatically the province and duty of the judicial department to say what the law is.” Courts must remain steadfast in this duty, even when faced with contentious or politically charged cases.
6. The third-term precedent as a pillar of stability
The third-term precedent established in Danny Pule serves as a stabilising factor in Zambia’s political and legal landscape. It provides clarity on the eligibility of presidential candidates and ensures that constitutional provisions are applied consistently. Prof Hamalengwa’s proposal to vacate this precedent risks introducing uncertainty and opening the door to politically motivated litigation.
As the Kenyan Supreme Court demonstrated in Raila Odinga v. Independent Electoral and Boundaries Commission (2017), courts must strike a delicate balance between protecting constitutional principles and maintaining public confidence. Zambia’s Constitutional Court achieved this balance in Danny Pule by delivering a decision that adhered to the letter and spirit of the Constitution. Vacating this decision would not only destabilise Zambia’s legal framework but also set a dangerous precedent for future political interference in judicial processes.
7. Conclusion: a call for judicial restraint
While Prof Hamalengwa’s article offers an intellectually stimulating exploration of judicial precedents, it ultimately fails to justify vacating the third-term precedent in Zambia. The decision in Danny Pule was legally sound, constitutionally consistent, and essential for maintaining judicial independence and democratic stability. Courts must exercise restraint in revisiting established precedents, ensuring that their decisions reflect enduring legal principles rather than transient political dynamics. The third-term precedent embodies this principle by upholding the rule of law and protecting the rights of officeholders.
As Zambia continues to navigate its democratic journey, the judiciary must remain steadfast in its commitment to constitutional integrity. Vacating the third-term precedent, as Prof Hamalengwa suggests, would undermine this commitment and risk compromising the judiciary’s role as an impartial arbiter of justice. The judiciary must resist such attempts to rewrite established precedents for political expediency, ensuring that its decisions stand the test of time rather than the test of politics.
The author is an academician, politician, musician, and revolutionary writer. Send feedback to: lmwelwa@gmail.com