JUDICIARY WANTS TRIBUNAL FOR ERRING JUDGES
By Isaac Mwanza
AGAIN, during the 2017 to 2020 constitutional review up till the National Dialogue Forum (NDF), the Zambian Judiciary and civil society organisations (CSOs) made proposals on what they sought to be reviewed in the current Constitution.
One of the many proposals the Judiciary made was a merger of the Constitutional Court and the Supreme Court into one apex court.
The proposal was for the original jurisdiction in constitutional matters to be restored or reverted back to the High Court, under a Constitutional Division.
The Judiciary’s arguments were that placing original jurisdiction in constitutional matters in the Constitutional Court denies a litigant the opportunity to have the decisions of the court reviewed and tested by another court in a moment where a litigant is dissatisfied with the decision of the court of original jurisdiction.
The Judiciary also wanted the review process to delete provisions on the processes of removing judges from office.
It was their view that the new provision of using the Judicial Complaints Commission should be replaced by reversion to the previous process which was in place before the 2016 Constitutional amendments.
In their preferred process, a judge would be subjected to a disciplinary hearing before a Tribunal of his or her own peers just as legal practitioners sit before Committees comprising of their peers at the Law Association of Zambia.
On the part of the civil society, there was a strong push during the NDF for adoption of the Mixed Member Proportional Representation (MMPR) System which would provide for more women and youth representation in the National Assembly and Councils.
This was met with resistance from major political parties who claimed that smaller parties and CSOs wanted to use the back door to enter Parliament and local councils.
The opponents of the MMPR system argued that this system would be unfair as it would allow certain groups free passage into the Parliament and local councils.
They stated that candidates for traditional political party are required to spend considerable resources on campaigning for their elective seats in the same parliament.
The counter-proposal by those who were opposed to the MMPR system was to include a provision in the proposed Political Parties Bill which would compel political parties to adopt more women and youth.
Adopted candidates would, in turn, compete on the same terms as all others who aspire to the office of Member of the National Assembly.
This counter-proposal was rejected by the CSOs who then threatened to shoot down the entire constitutional review process which had climaxed at the NDF.
Other institutions such as the Electoral Commission of Zambia made submissions that called for removal provisions from the Constitution which limit the number of parliamentary constituencies to one-hundred-and-fifty and place them in an Act of Parliament.
The intention was that said the number of seats in the National Assembly should easily be increased or decreased when circumstances arise and at the whim of the National Assembly or government without the need to amend the Constitution.
This proposal attracted a mixed reaction with some delegates viewing it as a move by the then ruling Patriotic Front to create more seats in its strongholds for purposes of gaining greater control of Parliament.
We must acknowledge that the exercise of legislative power based on numbers is one of the pitfalls of representative democracy.
The party in power or indeed any other party, if it has numbers in parliament, can move amendments any legislation and the Constitution itself regardless of the wider public opinion.
Naturally, the issues raised by the Judiciary, Civil Society Organisations and the Electoral Commission, when viewed objectively, give rise to the question of whether or not there is an urgent need to amend the Constitution in view of those issues, as has been done in other countries?
The biggest challenge with Zambia’s approach to constitution-making is that it is driven by what is happening in other countries.
We tend to review our constitution not because we have our own original ideas which reflect our own national circumstances.
We usually invite so-called foreign experts to come and tell us about what is in their constitution and what must be in our Constitution.
Some of the issues which may be considered for amendment or removal from the Constitution have not been fully tested to see how they work over an extended period of time.
As a matter of fact, some provisions were deliberately placed in the Constitution in order to “protect” such provisions from the whims of the party in power using its parliamentary power to amend Acts and change the law at its own convenience. Are we ready to revert to our old ways?
Of course, this author believes our Constitution does indeed have some lacunae and ambiguous provisions which ought to have been cleared and clarified with other provisions.
But no Constitution in the world is perfect, including the world’s oldest written Constitution of the United States of America whose twenty-nine amendments, so far, are testament to its imperfections.
The fact that a constitution is not perfect is the reason why we have courts specialised to deal with problems that emerge from the lack of clarity in a constitution.
The best approach to removing ambiguities and redress matters which its drafters never thought would arise is to allow the Constitutional Court to broadly interpret the Constitution.
Unfortunately, our Court has been the first one sending invitations to Parliament, through its judgments, to open the Constitution up for further amendments.
Our Court must emulate its sister Supreme Court of the United States of America to never duck, weave and push back the Constitution to the people and Parliament.
It is the duty of our Constitutional Court to develop this country’s constitutional jurisprudence without any need for further amendments to the Constitution.
[Published by the Daily Nation, May, 2023]