The Constitutional Court could this time around vacate the third term precedent it set in Danny Pule and subsequent judgments to prevent Edgar Lungu from standing: my thesis

The Constitutional Court could this time around vacate the third term precedent it set in Danny Pule and subsequent judgments to prevent Edgar Lungu from standing: my thesis

By Prof Munyonzwe Hamalengwa

What do the following Untied States of America Supreme Court decisions have in common and how do they relate to the Constitutional Court of Zambia judgments on the third term precedents: Dred Scott (1857); Plessy v. Ferguson (1896); Korematsu v. The USA (1942) and Roe v. Wade(1973)?

The common thread is that all these famous decisions were eventually vacated and terminated as precedents either through political processes or judicial pronouncements. The third term precedents in Zambia set in Danny Pule and others on the eligibility of Edgar Lungu to stand for a third term of office as president could be vacated if new litigation under the current Constitutional Court and its new judicial composition was to be initiated. Danny Pule and other cases could lie in ruins. It is my considered thesis. I elaborate below.

Let me start this article by going way back to another country in which famous precedents were vacated to bring the point home to Zambia. Dred Scott Decision of 1857 penned by the Chief Justice of the United States Supreme Court held that Blacks did not have equal rights that a White man would recognise and respect. There was a powerful dissent in Dred Scott just as there was a powerful dissent in the third term cases in Zambia. The dissent in Dred Scott kept the debate alive. But once you were a slave, according to Dred Scott, you could not escape that status even if you escaped slavery or moved to another state where there was no slavery. The decision was very controversial even in the days of the supremacy of slavery in that country.

The civil war in the United States between 1861 and 1865 resulted in the political emancipation of Black slaves and thus the political and legal erosion of the holding in the Dred Scott case. To render legal imprimatur to the new status of the slaves, the Constitution had to be amended. The 13th and 14th Amendments to the US Constitution politically and legally abolished the meaning of Dred Scott. These Amendments granted de jure equality for Black citizens of the United States, at least on paper even if not in practice. It was a tentative beginning.

However, these political and legal processes did not end discrimination against Blacks at all. In 1896, the Supreme Court ruled in the Plessy versus Ferguson case that in terms of enjoyment of amenities in the travel business via trains, etc Whites and Blacks were to ride in “separate but equal compartments”. The question was if these facilities were equal, why were they separate? Why were they separated by colour of one’s skin? This separate but equal doctrine permeated the US society in all walks of life, some would say until today with modifications here and there along the way. There was a very powerful dissent by Marshall Harlan in the Plessy case which kept the case hotly debated just like the dissent in Dred Scott and third term in Zambia cases. Plessy energised and continued the Jim Crow doctrine. Blacks should know their status and place even if not enforced by the law directly. The White KuKlaxKlan ( KKK) or white cadres clad in white colour hooded robes informally enforced the discriminatory rule of the White man.

In Zambia we are familiar with the terrorism of party cadres who enforce party rule with impunity, especially and evidentially during the 2011-2021 period. But that rigid doctrine of “separate but equal” was dealt a significant blow in the Brown v. Board of Education (1954) Supreme Court decision that integrated the races in matters of education and eventually in all areas eg housing, residential areas etc. Plessy was outrightly overturned by a judicial decision of the Supreme Court of the United States.

In 1942, the Japanese Americans were being rounded up along the coast of California and relocated into the American mainland through what were regarded as some sort of concentration camps on the basis that being of Japanese ancestry they were potentially unpatriotic and would join their Japanese race who had invaded Pearl Harbour in Hawaii. The Japanese were discriminated against on the basis of their ancestry and race. A gentleman named Korematsu resisted resettlement and was criminally charged and convicted but lost his appeals all the way to the Supreme Court. He and the Japanese community continued fighting for redress until Ronald Reagan convoked a commission of inquiry in 1986 which ruled in 1988 that the Japanese were illegally and wrongfully stereotyped and Korematsu was decided by the Supreme Court in 1942 on the basis of false evidence and therefore could no longer stand. This was redressed in the political arena. The Japanese were compensated and the Korematsu precedent was vacated through the political process of a commission of inquiry and eventually by an Executive Order. The Supreme Court eventually ruled that Korematsu was no longer a good precedent.

A parallel process equivalent to Korematsu happened in Canada and when Reagan initiated his commission of inquiry in the USA, Prime Minister Brian Mulroney of Canada copied and the results mirrored those of the US. The descendants of Japanese Canadians who were wrongfully relocated were also compensated in 1988. The redress was politically achieved. Justice has a long memory.

Roe v. Wade (1973) the controversial decision of the US Supreme Court that held that women had a right to privacy which included the right to have abortions as part of the right to privacy, was overturned in 2021 in the Dobbs decision of the Supreme Court. I opine that this Dobbs decision will be overturned also in the future through political or judicial processes. In mid term elections in the US in 2022, congressmen and women who promoted the right to privacy for women secured more electoral victories than those who were against women’s right to privacy.

The above decisions that I have discussed were not the only cases in the US that were eventually vacated and ceased to be precedents, there are quite a great number more. And my rendition of the summaries is simply that, summaries of cases which are more complex and detailed than presented here.

Bernard Schwartz has written a book entitled, “The Ten Worst Decisions of the US Supreme Court”. Dredd Scott assumes the position of number one worst decision. Plessy is in the book as well. There is no such a book pertaining to the best or worst decisions of the Supreme Court of Zambia or the Constitutional Court of Zambia.

This article is aimed at indicating that precedents can be overturned and have been overturned through either political and or judicial processes as evidenced by the decisions I have cited above. In Zambia recently we had the Hakainde Hichilema case overturned by the Supreme Court but I won’t dwell on that case in favour of clear foreign cases to make my case that the third term precedent in Zambia set by the Constitutional Court in Danny Pule and subsequent cases could and can be set aside and cease to be precedents. The cases once reopened or litigated could result in interesting outcomes. A suitable factual matrix must present itself. One such factual scenario is if former president Edgar Lungu presents himself for presidential candidacy. It would be argued that he had already held office twice and had been sworn in twice. I know this sounds tired. But controversial decisions never die as you can see that Dredd Scott that was decided close to two centuries ago and overturned close to a century ago, is still being discussed as a teachable controversial precedent.

Plessy, though overturned over half a century ago, is still being taught. Korematsu that was overturned half a century ago continues to be taught on how a terrible decision can be overturned through a commission of inquiry prefacing a judicial decision. Roe was mightily controversial when it was decided half a century ago contributing to the animation of US political and judicial dynamics around the issue of abortion until Roe was overturned in 2021. In Zambia, the third term precedent was one of the most controversial decisions so far in the nation’s political and judicial history. The cases on this animated Zambia’s political, legal, and judicial debates in an unprecedented way.

The third term precedents constitute the law in Zambia but that does not mean that these precedents should be off limits to debates in Zambia. The Dred Scott, Plessy, Korematsu and Roe precedents did not close debates in the US. The political and judicial debates led to their overturning in subsequent political or legal engagements.

This article was written to offer my opinion that if and when the third term precedents are challenged, the Constitutional Court could vacate those precedents. There are known benchmarks that eventually lead to the vacation of controversial precedents. And they are all present in the third term precedents in Zambia. They were present in the US precedential decisions that were vacated. The first factor is the controversial nature of the decisions and the political impact they engender, which makes them a continuing target for political and legal debate. The second factor is the power of the dissent against the majority decision. All or most overturned precedents had very powerful dissents that continued to reverberate over the years and those dissents later formed the basis for overturning the decisions which had been precedents.

The third factor is the changed composition of the Supreme Court or Constitutional Court and is always an ever-present continuum. The judiciary changes in composition, in character, in the political environment, and so are many other issues affecting the judiciary. The fourth factor is the overwhelming changed political environment. The judiciary can lead the politics at times, sometimes the judiciary is contemporary with the political environments and lastly the judiciary can be so far behind the political developments of the period; the judiciary may be tied to the apron strings of the past. The judiciary could also be in cohorts with the present political establishment and simply reflect the heartbeat of the present political dispensation. Donald Trump of the United States often talked about how he would appoint judges of like-mind who would overturn Roe v. Wade etc. And he achieved that by appointing three conservative judges that led in that new judicial composition to the overturning of a very consequential precedent.

In Zambia the third term precedent could fall. In no particular order, the reasons the precedents could fall include the following:

The precedents were established during a political dispensation that demanded that the President be accorded the mandate to continue to rule by hook or crook. The President threatened the judiciary not to be swayed by judicial adventurism that characterised the Kenyan judiciary as adventurism could lead to serious political disruptions with untold consequences. The judicial branch that established those new precedents was a new branch whose very judicial appointments by the President, were controversial for a number of reasons that have been pointed out severally by others. The bench was inexperienced, others have said, and making decisions on that important issue in a constricted political and judicial environment was poignant. Everyone will remember the political tension and the threat to the judiciary and political opposition that characterised the 2016-2021 period. The political environment is entirely different now. There is a new political dispensation.

In the previous period, the Constitutional Court judges making the controversial decisions were fewer than the required compliment of judges in that branch. There is safety in numbers. Now there are more judges in that branch which would be difficult to intimidate. This increased number of judges means as well there is a new composition in the judiciary. There is also changed composition in the judiciary. One judge died and one judge retired. The precedents elicited one powerful dissent that continues to ring in the ears and in the law reports. And it was not a dissent by just another judge; it was a dissent by a learned professor who is now the President of the court that made the precedent. Dissents are not of equal value in the apex courts.

The precedents may not have been created if the Constitutional Court had accepted the amicus curiae application by three eminent Zambian law professors teaching abroad: Professors Chaloka Beyani, Cephas Lumina, and Melvin Mbao and represented by Musa Mwenye SC. If the amicus application was granted, I posit that the decisions which created the precedents, would not have been made. The wide ranging arguments and case law from around the world assembled by the eminent professors with their counsel Mwenye, SC on the subject matter, were so compelling that the Constitutional Court would have been embarrassed to rule another way but to rule in favour of rejecting Lungu’s bid to run for a third term. The court even refused to acknowledge the application for amicus standing, let alone to consider the paradigm shifting arguments and case law deployed therein. It is inconceivable that the current and new expanded composition of the judiciary would reject and not take into account that amicus brief. This court would accept the amicus brief and would rule differently based on what is contained in the amicus brief. Though very young it is time to overrule the third term precedents and if Lungu runs again, the application to vacate these precedents on which he had stood will succeed. Precedents do get vacated. It is my opinion that if Lungu ran again, he will be defeated by the Constitutional Court this time around as he would not succeed to be on the ballot, unlike last time when he won in the courts of law but lost in the court of public opinion, the ballot box.

The author started his legal studies in Washington DC and ended them in Canada, and continues to write on the judiciary and other legal areas. Email: munyonzwe.hamalengwa@zaou.ac.zm