Rebuttal to Prof Hamalengwa: upholding constitutional fidelity over political expediency

Rebuttal to Prof Hamalengwa: upholding constitutional fidelity over political expediency



By Dr Lawrence Mwelwa



In the Monday, 16th December 2024 edition of The Mast, Prof Munyonzwe Hamalengwa claimed a significant academic victory by reflecting on the outcome of the Chizombe case, which successfully barred former president Edgar Lungu from contesting future elections.

In his commentary, Prof Hamalengwa celebrated the Constitutional Court’s decision as a vindication of his long-standing critique of the Danny Pule precedent, positioning himself as a pivotal voice in Zambia’s evolving jurisprudence. Despite the gravity of his assertions, his arguments, once again, went unanswered by the broader legal fraternity. This silence from legal scholars and practitioners, whether intentional or incidental, raises critical questions about the engagement of Zambia’s legal community in addressing contentious interpretations of constitutional law, as well as the implications of such judicial outcomes for the rule of law and democratic governance.

Prof Munyonzwe Hamalengwa’s reflections on the vacating of the Danny Pule precedent offer an interesting perspective on judicial precedents and their evolution. However, his celebration of the Constitutional Court’s recent decision in Michelo Chizombe v Edgar Chagwa Lungu et al (2023/CCZ/0021) reveals troubling inconsistencies in his jurisprudential philosophy. While Hamalengwa lauds the court for overturning a precedent he views as legally unsound, his arguments expose a reliance on political expediency rather than a principled commitment to constitutional fidelity.

Judicial consistency and constitutional integrity

Prof Hamalengwa emphasises the role of new litigants and tenacious advocates in vacating precedents, presenting this as a hallmark of progressive legal systems. However, this framework risks undermining judicial consistency, a cornerstone of the rule of law. Courts must function as stabilisers of constitutional democracy, ensuring that their decisions are not perceived as being influenced by shifting political currents (Malila, 2021). The Danny Pule case was adjudicated by the Constitutional Court, which upheld Lungu’s eligibility based on constitutional provisions. Reversing this precedent without clear, compelling new evidence or legal developments weakens public trust in the judiciary’s impartiality. Moreover, the use of per incuriam to justify the vacating of the precedent is contentious. As Malila (2021) argues, the doctrine of per incuriam must be applied with restraint, reserved for instances of clear, egregious oversight of binding authority. The absence of such oversight in the Danny Pule precedent raises serious questions about the court’s motivations. Was the decision truly based on legal principles, or was it influenced by political expediency?

Judicial independence or political manipulation?

Hamalengwa’s acknowledgment of Michelo Chizombe as an “enigmatic litigant” and Michael Moono as a “tenacious advocate” underscores the potential for proxies to influence judicial outcomes. This aligns disturbingly with global examples of judicial manipulation. For instance, Hungary’s judiciary under Viktor Orbán became an instrument of political power, eroding the rule of law (Scheppele, 2013). Similarly, Zambia risks descending into the realm of politically influenced jurisprudence if courts increasingly entertain litigation driven by vested interests. Malila (2020) offers a critical insight into this issue, emphasising that courts must resist becoming “tools of transient political convenience” . The Chizombe case appears to embody precisely what Malila warns against—a judiciary that aligns its decisions with political winds rather than constitutional fidelity.

Contradictions in legal reasoning

Hamalengwa’s argument that vacated precedents must reflect evolving political contexts is fraught with contradictions. While he critiques the rigidity of judicial precedents, his advocacy for vacating the Danny Pule precedent appears to be less about correcting egregious legal errors and more about serving a political objective. This selective application of legal principles undermines the universality of his argument and risks creating a judiciary that is perceived as unpredictable and partial. As justice Cardozo famously warned, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by” (The Nature of the Judicial Process, 1921). By vacating precedents based on political convenience, judges risk being swept up in these tides, abandoning their role as impartial arbiters.”

Implications for Zambia’s constitutional democracy

The Chizombe decision not only raises questions about judicial independence but also threatens Zambia’s constitutional stability. By declaring Lungu’s 2021 candidacy invalid without addressing the broader implications for the legitimacy of the 2021 elections, the court has created a constitutional paradox. If Lungu’s participation was invalid, does it not follow that the election itself was tainted? The court’s failure to resolve this contradiction undermines the clarity and finality of its judgment.

Malila (2021) reminds us that “courts are not only interpreters of the law but guardians of the constitutional order”. The selective application of justice in the Chizombe case jeopardises this role, eroding public confidence in the judiciary and diminishing its ability to act as a stabilising force.

Global lessons and historical context

Hamalengwa’s celebration of advocates like Thurgood Marshall, who successfully challenged Plessy v. Ferguson, fails to recognise the fundamental differences between these cases. Marshall’s efforts addressed systemic racial injustice—a clear violation of fundamental rights. In contrast, the Danny Pule case involved a constitutional interpretation that, while controversial, did not exhibit the egregious rights violations seen in Plessy. Comparing the two risks conflating legal principles with political expediency.

Moreover, the invocation of per incuriam in Chizombe sets a worrying precedent. Courts globally have stressed the importance of maintaining the integrity of judicial decisions. For instance, South Africa’s Constitutional Court in Certification of the Constitution of South Africa (1996) emphasised the need for consistent legal reasoning to preserve public trust (Ackermann, 1996). Zambia’s judiciary would do well to heed this lesson.

Conclusion

Prof Hamalengwa’s celebration of the Chizombe decision and his broader arguments for vacating controversial precedents expose troubling inconsistencies in his jurisprudential philosophy. While he advocates for judicial independence in principle, his selective endorsement of judicial activism risks undermining the very foundation of constitutional democracy. As Malila (2021) rightly notes, “Judicial independence must be practiced through decisions rooted in the law, not swayed by political sentiment”.

Zambia’s judiciary must strive to uphold this principle, resisting the lure of political expediency and reaffirming its role as a guardian of constitutional fidelity.

The author is an academician, politician, musician, and revolutionary writer. He holds a PhD in Political Science. Send feedback to:

lmwelwa@gmail.com