JCC’s decision to recommend the dismissal of 3 ConCourt judges and their final dismissal was unsatisfactory but just and long overdue
By Prof Munyonzwe Hamalengwa
The worst 10 decisions of the Supreme Court of the United States (SCOTUS) as documented by America’s leading historian of the Supreme Court, Bernard Schwartz, in my opinion, are better than Zambia’s worst decision made by the Constitutional Court of Zambia on September 5th, 2016 involving the aborted presidential election petition.
I have to use the US decisions to emphasise the point that despite the unsatisfactory journey and zigzags leading to a decision that resulted in dismissal of the three Constitutional Court judges by President Hakainde Hichilema on October 20th, 2024, the dismissal was belatedly just.
Injustice begets injustice on the way to justice. Illegality begets illegality on the way to legality. Misconduct begets misconduct on the way to good conduct. Corruption begets corruption on the way to incorruption. Where justice, legality and incorruption depart from injustice, illegality and corruption respectively depend on contestation, zigzags, balance of power and the character of political and judicial leadership in control.
We shall leave this trend of thought for another day as I now turn to comment on the unsatisfactory but just and deserved dismissal of the three Constitutional Court judges. The three judges committed illegalities and misconducts backgrounded by incompetence and lack of authority or jurisdiction in their purported majority decision of September 5th, 2016, eviscerating the presidential election petition that was already under way.
All the 10 worst decisions of the SCOTUS were transparently argued in public where lawyers of both parties made submissions before a properly constituted panel of judges and the judges after receiving the submissions retired to consider the cases. The senior most judge or the Chief Justice assigned a judge to write the unanimous or majority decision. The judges exchanged drafts to inform each other and to try to influence each other. This process is analysed in Bob Woodward and Scott Armstrong’s book, “The Brethren: Inside the Supreme Court” and in Edward Lazarus’s book, “Closed Chambers: The First Eyewitness Account of the Epic Struggles inside the Supreme Court”.
All the judges would have participated in the decision making and rendering of the unanimous, majority or dissenting opinions and would know what results would be publicised to the outside world and on which day.
There were some decisions like Dred Scot (1857) which upheld slavery which so enraged some dissenting judges that these judges in protest leaked the atrocious decision to the media at night before the day of the official release of the decision. But all judges knew what the decision was. It is the same for the infamous decision of Plessy v. Ferguson (1896) upholding racial separateness in the enjoyment or lack thereof of “equal amenities”. And all the other 10 most odious SCOTUS decisions. All the judges participated in rendering them. Even the most controversial decision of 20th century in the case of Roe v. Wade (1973) where the majority curved out whole new hitherto unknown privacy rights to recognise the right to abortion in the “penumbras of the constitution” all the judges knew what the decision would be. They were not blindsided. See Laurence Tribe, “Abortion: The Clash of Absolutes” and Linda Greenhouse, “Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey” (Blackmun wrote the majority decision in Roe).
In the Dobbs case (2022) that overturned the popular but controversial half century precedent of Roe, the judges knew what the decision would be as they participated in the decision-making process. Even unpopular decisions in the US have outer guardrails that guide the decisions, the judges do not go on a frolic of their own. See Bary Friedman, “The Will of the People: How Public Opinion has Influenced the Supreme Court and Shaped the Meaning of the Constitution”. See also Richard A. Posner, “How Judges Think” and Bernard Schwartz, “Decision: How the Supreme Court Decides Cases”.
The three dismissed Constitutional Court justices in an unprecedented leap and show of incompetence, illegality, unconstitutionality, and misconduct, sequestered themselves into an illegal appeal panel on the weekend of September 2 to 4 of 2016 outside legitimate courtroom hours to overturn, without authority or jurisdiction, a previous unanimous decision of the whole empanelled court of September 2, 2016 that decided to hear the presidential election petition beginning September 5, 2016. This beats the characterisation of the 10 worst decisions of the SCOTUS. The 10 worst decisions involved mainly the substance of the decisions, their immorality and discriminatory or nonsensical lack of good judgment. They do not involve the personal behaviour of these judges touching on incompetence, illegality and misconduct.
Here, another aggravating factor in the case of the three judges is that they had no jurisdiction to do what they did. And search as you may, as I did after reading the leaked decision of the Judicial Complaints Commission, you will not discover another such display of judicial incompetence, illegality and misconduct and violation of the Constitution and abuse of position of power. Even though the decision of the Judicial Complaints Commission does not display confidence in how decisions of such importance must be written, the decision contains plenty of evidence that there was misconduct and illegality in what the three judges did. The decision could have been written in a better way. Despite a lot of troubling aspects and the zigzags as already stated of this case, the result is justified. As already stated as well, injustices, illegalities, misconducts etc unleash their own lives and it takes time to exorcise the demons they engender. What has happened could have imposed a dangerous chapter in Zambian history. The manner in which the petition by these three judges was dealt with was so transparently unpopular that violence could have ensued. The judges could have been dancing to an external master manipulator. The judges were operating in an environment where the sitting President was violating the Constitution by refusing to hand over executive powers to the Speaker of the National Assembly as per constitutional requirement. The judges decided to be adventurous in the same breath. These same judges had previously been characterised as unqualified and they decided to prove their unqualifiedness in this fashion.
If these judges read the Constitution properly, they would have discovered that the Constitution disapproves of deciding important cases of this nature on technicalities. If the judges read the constitutional jurisprudence from around the world and engaged in scholarly literature, they would have been led to the conclusion that the court has jurisdiction to extend time in cases already underway and especially where the sitting President had already violated the Constitution and was violating the Constitution by not surrendering power to the Speaker as already stated. There was no prejudice even though this is not to encourage breach of the Constitution. The most aggrieved and prejudiced person was the petitioner but the petitioner was willing to conclude the process no matter how long it took.
In terms of whether the JCC had power to second guess the decision of the judiciary or to somehow interpret the Constitution, the JCC did neither. The decision to recommend the disciplining of the judges is competent to none other than the JCC, and the ConCourt has no such say at all. What the three judges did during the weekend of September 2 to 5, 2016 falls competently under the jurisdiction of the JCC and no other body or person. What they did that weekend still reverberates to date close to 10 years later and will continue to ricochet for the foreseeable future. And that is how dangerous the judicial adventure of the three judges have wrought on Zambia. It is a precedent that must never recur. It is bitter fruit. It is bitter harvest. The result is a just amargeddon.
Prof Hamlengwa is author of “The Politics of Judicial Diversity & Transformation: Canada; USA; UK; Australia; South Africa; Israel; Colonial and Post-Colonial World and International Tribunals”, and currently serves as Dean of the School of Law at Zambian Open University. Email: munyonzwe.hamalengwa@zaou.ac.zm