THE ATTACK ON THE JUDICIARY AND THE EROSION OF THE STATE
The Attack on the Judiciary and the Erosion of the State
…removing judges like casual daily employees threatens the well-being of the State…
By Amb. Emmanuel Mwamba
When President Edgar Chagwa Lungu signed into law a popularly adopted Constitution, there was both jubilation and fears expressed.
The celebrations related to the extensive amendments that included progressive articles such as; the provision of the date of general elections, the grade 12 qualification requirements for lawmakers, protection of former presidents from politically engineered prosecution, the provision of dual citizenship, removal of a by-election in the event the President dies, creation of the Constitutional Court and Appeals Court and the provision of 50+1 majority vote for the election of a Republican President.
It was largely a good Constitution.
However the devil hid in the details.
For example the provisions removing security of tenure of judges by articles that simplified both the appointment and the removal of Judges would haunt the country forever and threaten the well-being of the State if not corrected.
As the last bastion of Truth and Justice, an independent Judiciary usually prevents the collapse of the State or the reign of anarchy.
These recent provisions however have significantly eroded the independence and autonomy of a thriving Judiciary.
Without security of tenure, the judiciary is in essence dead and the the threat of the healthy standing of the State is compromised.
Recognising the weaknesses in the Constitution, the Patriotic Front Government attempted to rectify these anomolous clauses by proposing amendments to the Constitution through Bill 10.
But Bill 10 was a poisoned chalice as its timing was poor and stakeholders stood at highly polarized positions especially in light of the forthcoming 2021 elections which presented sufficient suspicions of the true intentions of President Lungu to amend the Constitution.
It was feared that President Lungu may tailor the Constitution in his own image and that of the Patriotic Front.
PRESIDENT HICHILEMA TAKES ADVANTAGE OF WEAKNESSES IN THE LAW
Since he assumed office, President Hakainde Hichilema has been quick to take advantage of bad laws to entrench himself and has used archaic or bad instruments that were roundly condemned in the past to get a tight and autocratic grip on power.
For example, President Hichilema does need the Criminal Defamation of the President as more oppressive laws exist in the Cyber Security and Cyber Crimes Act of 2021 and the ordinary Criminal Defamatiom Act, that goes to stifle freedom of expression and punishes offenders better than the Criminal Defamation of the President law would ever do.
Even before the outlaw of the Criminal Defamation of the President, Hichilema’s government arrested more people that insulted him under this law than any previous President had ever done.
Similarly, President Hichilema has been quick to allow and perpetrate the abuse of Law Enforcement Agencies, and has taken away their independence and has tailored them as a sharpened tool to oppress the Opposition and his political opponents.
THE DEATH OF THE JUDICIARY, THE REIGN OF ANARCHY AND THE COLLAPSE OF THE STATE
The judiciary plays a fundamental role in society to uphold social order and the Rule of Law. Its primary function, in fact, is to resolve conflicts which in turn promotes co-existence and peace in society.
For the Judicary to play this fundamental role, it must enjoy judicial independence.
Judicial independence is therefore crucial as a fundamental value of the Rule of Law and of upholding Constitutionalism.
Recently two activists petitioned the Constitutional Court challenging President Hichilema’s appointment of 20 judges.
Mr. Isaac Mwanza and Mr. Maurice Makalu have contended that President Hichilema did not bother to follow the Constitution or norms of transparency, merit, or offer equal opportunity to other qualified persons and failed to consider constitutionally prescribed qualifications in making the appointments of the 20 judges.
REMOVAL OF JUDGES
However it’s the quick removal of Judges that has sent cold chill in stakeholders’ spines.
It has been realized that the removal of the judges can be done through a sham hearing by the Judicial Complaints Commission.
In two years and so far, Judge Sunday Nkonde, Judge Joshua Banda, Judge Kopa Muma and the Director of Public Prosecutions (DPP) Lillian Shawa-Siyuni have been removed like one would in the dismissal of casual daily employees!
Hichilema has fully exploited the weaknesses in the Constitution.
In the past, removal of the Judge or DPP required a full hearing through a judicial tribunal held in public.
Not so with this new Constitution and this President.
Further, Hichilema’s determined quest to control the Judiciary with a tight fist has been enforced and exposed with the appointment of all office-holders from that come from one region of the country.
President Hichilema has appointed the following to head the judiciary and its structures; Justice Minister (Mulambe Haimbe), Chief Justice(Dr. Mumba Malila), President of the Constitutional Court( Hon. Justice Prof. Margaret Munalula ) and Deputy President (Arnold Shilimi), President of the Court of Appeals (Mwiinde Siavwapa), Attorney General ( Mulilo Kabesha SC), Solicitor General (Marshall Muchende SC), Chairman of Judicial Complaints Commission ( Vincent Malambo SC), and Judicial Service Commission ( Mwikisa Louis Mukande).
CONCLUSION
The removal, dismissal or retirement of professionals from the public service and from state-owned enterprise has been justified by the New Dawn Government on false claims or mere suspicions that those removed were or belonged to the Patriotic Front.
Infact the exercise has been nothing but a systematic purge.
The removal of, Judge Sunday Nkonde, Judge Joshua Banda, Judge Kopa Muma and Lillian Shawa-Siyuni as DPP, has sent a clear message that any member of the public service including the Judiciary will be removed without much-ado.
Stakeholders must recognise that we need to restore constitutional protection of judges by reinstating provisions that require stringent but fair mechanisms for both their appointments or removal.
Failure to do so, has far reaching consequences as the judiciary holds the State together and a weak judiciary eventually promotes anarchy, social disorder and fails to resolve conflicts and presents negative effects on the state of the economy and crime levels.
For those taking glee satisfaction in the removal of Judges, they are being shortsighted as withoit amendments to the Constitution, this can visit any current Judge now or in the future.