JUDICIAL INDEPENDENCE VERSUS POLITICAL INTERFERENCE: THE DEATH OF JUDICIAL INDEPENDENCE IN ZAMBIA
By Jonas Zimba
INTRODUCTION
The Principle of Separation of powers applies to many common law countries with equal force and Zambia is not an exception.
It is envisaged under this principle that one arm of government will provide an oversight function over another.
Meaning that, the Legislature will enact laws, the Executive will perform executive functions and the Judiciary through the Courts will interpret the law and check any excesses.
Of interest in this case is the Judiciary, this is because the death of the judiciary spells the death of any nation and its governance systems.
Citizens will be oppressed, critical voices will be silence and checks and balances will be removed completely introducing an arbitrary system which cripples a nation and buries any system.
Awolowo, Obafemi(1981) , Justice M.C .Sharma (2001) and Justice Stephen Breyer.(2005) all opine that the Judiciary is the spirit and conscious of any nation.
It is opined that once the spirit and conscious of any nation dies, the nation is dead.
Under the Zambian Constitution as amended in 2016, Article 122 provides for the functional independence of the Judiciary. That is to say, the Judiciary ought to be independent.
The Chief Justice of Zambia Dr Mumba Malila SC, on the 8th of August, 2024 did present a speech and it was reported in the Diggers Newspaper of the 9th August, 2024 , the headline being” we can do better in the Corruption Fight”. In the said story the Chief Justice is reported saying,” am I happy with the corruption fight? It is a very difficult question but the only thing I can say is that there is quite a lot of scope for improvement”.
It is a common fact now more than ever, that the question of the fight against corruption is a matter for the Executive as it is a political matter and not the Judiciary’s cup of tea. The Judiciary is there to decide cases on facts and law, comprised of professionals who have taken oath to protect the Constitution whereas Executive is largely composed of politicians as they ascend to such position either by election or political appointment. Has political pressure visited the Judiciary?
One would ask, is the Judiciary independent given the political environment within which it exists?
JUDICIAL INDEPENDENCE
What is judicial independence?
Most of the adjudicators in the Judiciary in Zambia are lawyers. If we talk about Judges, the first qualification is that for one to be a Judge, they must have practiced as an Advocate for a minimum period of ten years depending on the Court they are ascending to .
The oath of office taken by a lawyer is distinct, it requires that one protects and defends the Constitution, the Judicial oath requires one to do justice in accordance with the Constitution whereas the other oaths of office require one to protect the Constitution only . The oath taken provides as follows:
“OATH OF OFFICE
I …………………………………………………………………………………………………….., having been appointed/elected/nominated…………………………………..do swear/affirm that I will well and truly serve the Republic and the President of Zambia; that I will be faithful and bear true allegiance to the President and the Republic of Zambia, that I will preserve, protect and defend the Constitution of Zambia, as by law established; and that I will not directly or indirectly reveal or transmit any such information or matter as shall be brought under my consideration, or shall be made known to me by reason of my office except as may be required in the discharge of my duties as such or with the authority of the President.
SO HELP ME GOD.”
It is a given, that a judge is a lawyer before they are a judge and the above oath applies to them with equal force and as to whether they forget this oath when they become judge or not is a topic for another day.
The international covenant on civil and political rights, identifies the three indispensable attributes of judicial office: Competence, Independence and impartiality .
Judges must be independent in order for them to properly discharge their functions of dispute resolution between the state and individuals or between private parties.
Shimon Shetreet ( Oct 1984) opines that the judiciary must be free from outside influence and external pressures when it adjudicates constitutional controversies, resolves administrative disputes or rules on criminal prosecutions or civil actions . Independence means both personal independence and substantive independence
Various writers have defined Judicial Independence in many ways.
One of the definitions of Judicial independence given by Sandra Day O’Connor (January 2008) is that judicial independence means to guarantee the rule of law. Whatever this means is a subject of discussion for another day.
David Kosar (2013) opines that, While one might still believe that the judicial power is “the least dangerous branch,” it is no longer accepted that the judiciary wields only limited power. The evidence is clear.
The power of courts has increased worldwide at an unprecedented pace in the last few decades. Judges often clash with the executive and interfere with the agendas of parliaments. As a result, virtually all developed legal cultures now accept that judges are not like umpires whose job is just to call balls and strikes, to paraphrase the Chief Justice of the United States Supreme Court, John Roberts,2 and that they sometimes resort to judicial law-making.
Two variable here are at play judicial independence and political interference.
Political Interference.
What is political interference?
Nathaniel T Dreyfuss (2013) argues that political pressure on the Judiciary is often argued as political interference in the court process. But what is political interference?
Natheniel T Dreyfuss (2013) further argues that public pressure exerted by the Executive on the Judiciary is perceived to be interference and it compromises the independence of the Judiciary.
From the flavour of the arguments by the above named author, it appears interference may mean anything that includes any form of meddling with the Judiciary by the Executive, any infraction or purported disciplinary measures premised on some political ground instituted by the Executive even through surrogates of any member of the executive whose desired end is to circumvent the law and put pressure on the Judiciary or the Judge.
Sunday Bontur Lugard (2017) opines that internal interference, as against traditionally known external interference in form of executive meddling in the performance of judicial functions skewed appointment processes, poor funding and tenure insecurity among others amounts to interference in the Judiciary.
WHAT IS THE STATE OF THE JUDICIARY IN ZAMBIA TODAY?
In recent times, the Zambia Judiciary has come under immerse pressure and has had a lot of infractions as regards its operations.
The first of this began with the appointment of Chief Justice Mumba Malila SC who the President of the Republic of Zambia referred to as “Our Chief Justice” in many forums including the Law Association of Zambia Conference held in Livingstone on the 13th April, 2023.
One would wonder when the executive or the President went on to claim such things as the Chief Justice being “Our Chief Justice”. May be he meant something else but it may also be that we are thinking too much about this statement but let’s leave it here for now.
The appointment of Dr Malila happened on the 22nd December, 2021 and before that he was a Supreme Court Judge in Zambia who served as such from 2014 .
Following the appointment of Dr Malila, Justice Joshua Banda was dragged to the Judicial Complaints Commission and subsequently removed as Judge of the High Court. This happened on the 6th May, 2022 and while Judge Banda was being removed, Judge Sunday Nkonde was suspended as judge .
Judge Joshua banda was removed following a complaint of alleged corruption which is alleged to have taken place before he became Judge. This matter went all the way to the Constitutional Court . One would ask, can a Judge be removed from office for something that is alleged to have been committed or done before he became Judge?
This is a topic for another day but what about the vetting and clearing process? What happened to it?
It did not end at this, Judge Nkonde was subsequently removed from office. This was on the 3rd June, 2022 .
This Judge was removed following the determination of the Post Newspapers case. The President of Zambia Mr Hakainde Hichilema while in opposition is on record as having said that they will not sit idle and let the post newspaper be closed .
This is the Judge that determined the matter involving the Post newspapers and he is now out of the system as Judge.
This did not end here, Judge Wilfred Kopa Muma was removed on the 2nd July, 2023 .
The Lusaka times gave details as to why Judge Muma was removed from office.
They report that by a statement issued by the State House Chief Communications Specialist, Clayson Hamasaka, the President acted on recommendations made by the Judicial Complaints Commission .
The Judge was later charged with offences of wilful failure to follow procedure and abuse of authority of office relating to matters involving his functions as Commissioner of lands then because he gave land to a political party called the Patriotic Front (PF) and the view taken is that the greatest sin you can ever commit in Zambia today under the current government is to associate with PF.
Unfortunately for this Judge, the due process has not been accorded to him. He has not been given the benefit of having his case tried in the subordinate court as such a case starts from the subordinate court and the benefit of appealing to the High Court in case of a conviction and so on.
A Judge Must be allowed to have access to due process and the process must be fair . Whether this is being done or not is a discussion for another day.
Between the period 2023 to 2024, Judge Timothy Katenekwa was equally removed from office.
Judge Katenekwa was removed on the 28th January, 2024 . This was done about a month after the judge was suspended from office. This issue was heightened when Judge Katenekwa issued a subpoena to the Registrar of Societies then following a dispute between warring parties in the Patriotic Front Party, a party that has accused the ruling party of causing and instigating divisions therein.
From 2022 to January, 2024, about four Judges had been removed from office and three are on suspension who truth be told are likely to also go.
The suspension of these judges if you remember was done a few days before the hearing of the now famous eligibility case .
This has never happened before in the History of the Zambian Judicial system from the records so far accessed and remains a shocking event. What would the motivation for such a thing be?
In the past three years, there has been a very aggressive move by the Judicial Complaints Commission in Zambia.
This body is a creature of the Constitution and created by Article 236 of the Zambian Constitution . It exercises its power under Articles 143 and 144 of the Constitution of Zambia.
There has been a serious purging or removal of Judges from the Judiciary of Zambia by this commission. As indicated above, so far four judges have been removed and the latest one being Judge Timothy Katenekwa a Judge of the High Court for Zambia and now three Constitutional Court Judges are on suspension and likely to be removed.
The removal of most if not all these judges has a link to perceived political interference in the functions of the Judiciary for the simple reason that their removal or discipline is related to some political event.
One would ask, how will this removal of Judges ensures judicial independence amidst perceived political interference?
Is Judicial independence now dead in Zambia?
It must be noted here that the Chief Justice Mumba Malila, will go down in history as the only Chief Justice in Zambia who allowed erosion of Judicial Independence as well as polarised the Judiciary to a point of weakening and wiping out its independence.
One of the tenants of the office Judge is that a person occupying such an office must be guaranteed security of tenure .
Is there political interference in the Judiciary in Zambia? The position is now clear that there is political interference in the Judiciary and this can be seen from some Judgements that are not only strange but are politicking in themselves. The case of Michelo Chizombe v Edgar Lungu and two others referred to above, is a classic example.
The Constitutional Court has no power to revisit its decision as provided by the Constitution and only the Supreme Court can revisit its decision in qualified circumstances . It is strange that the Court is doing something that it does not have power to do but all this is very suspicious but it is illegal. What would the motivation for this be?
Recently the case of ECZ v Belemu Sibanze which sends waves of shock and paralysis when one reads it. This case has extinguished the right to seek redress were there is improper exercise of an administrative or statutory power. Essentially the decision says you can commit an illegality and there will be no one to check you and correct it. This is very sad. The Court has said, there can be no Judicial review in matters of elections. This position of the law is wrong both at law and when you apply common sense.
The removal of Judges and suspension of Judges of the Constitutional Court in somewhat suspicious circumstances even makes it worse.
Clearly there is political interference in the judiciary and judicial independence is dead.
Conclusion.
The principle of separation of powers in this country is no longer alive and at play.
There are various incidences that point to but one fact, that is to say that the judiciary is under attack and this cannot be denied anymore.
Ackerman. B. ( 2019) argues that many autocratic regimes have found the rule of law an extremely useful device in governing their societies. Under this set up.
The autocrats assert their arbitrary right to establish the rules, but require the bureaucracy and the judiciary to implement their commands I a consistent and principled fashion.
The position taken in this paper is that there is political interference in the Judiciary and judicial independence is dead.
This is executive invasion of the judiciary and they use the judiciary to achieve their illegal aims. This is in Morden times called law fare.
Major General Charles J. Dunlap (2008) argues that law fare is a concept that can be used for good or bad purposes.
In our present case, law fare should be understood to be the use of the law for a bad purpose that is to legitimise the illegal wishes of the executive through interference with judicial systems and functions.
For example, if A is an opposition leader and B wants the opposition leader to be jailed, he will create an offence and put public pressure as well as personal pressure on the judiciary to achieve this objective.
The perception created in this country now is that the executive is interfering with the judicial function as can be seen from many cases where the executive arm has been mention.
Sishuwa Sishuwa( Oct 19, 2024) , refers to a story of one German pastor and how we kept away from speaking about ills because it was not him that was affected.
“first they came for the socialist, and I did not speak out because I was not a socialist.
Then they came for the trade unionists, and I did not speak out because I was not a trade unionist.
They, they came for the Jews, and I did not speak out because I was not a Jews.
Then they came for me and there was no one left to speak for me”
The writer goes further and says he hopes that none of us will wake one day and adopt the words:
“first they came for the Archbishop and I did not speak out- because I was not an Archbishop. Or a Priest. nest they came for a Former President and I did not speak out- because I was not a Former President or his supporter.
Then they came for the Judges, then I did not speak out – because I was not a Judge…..”
The above write up raises questions as to whether the Judiciary is independent amidst political pressure/ interference or not.
It is opined that the chilling effect of Executive action which is vailed but cannot be hidden any longer in Zambia is symbolic of political interference in the judicial function and must be spoken against as it is not good for the country.
There is empirical evidence here and from the facts highlighted in this paper, that the Politicians now forming the executive arm of government have interfered with the judicial function of this country.
The position taken here is that where there is political interference, there is no judicial independence.
The re -opening of the eligibility case, a decision by the Constitutional Court which has effectively said in election matters there is no Judicial review, and the sending to jail of many notable people on grounds that are not supported by evidence as well as the tactical removal of Judges which all smell of nothing but executive interference.
Unless the executive let’s go of the judiciary, justice will remain a dream in this country.
As long as the executive keeps its tab on the judiciary, judicial independence will be dead and will remain as such.
Political interference always compromises judicial independence. STOP IT!