By Dr Munyonzwe Hamalengwa
It is my considered view that the Constitutional Court of Zambia must be dismantled or a Constitutional Court of Appeal must be erected over it to be the final Court of Appeal in Constitutional matters. This is a newspaper article so there is no space to do a thorough literature review that would buttress my conclusion and recommendation; thus, I will simply launch into my own opinion as to why I am submitting this recommendation. And I have written severally from different angles on this issue.
There are many reasons the ConCourt should be disbanded, mainly because its jurisprudence is unhinged from correct precedential jurisprudence. But the reason I recommend what I have stated above is the court’s refusal to entertain Zambia’s three foreign based law professors’ application for amicus curiae status in the third term eligibility case last year. Amicus applications are not filed to support or oppose the principal application in issue, they are applications to be a friend of the court, to assist the court in canvassing the most on-point jurisprudence that would help the court to not miss small or significant points, and therefore come to a reasoned and reasonable decision based on solid jurisprudence from across the world. Amicus applications are one way for the public to participate in the legal democratic governance of their country. This democratic participation is provided for in the Zambian Constitution as amended. There is no need to quote the numerous relevant constitutional provisions on this, the learning process involves each one reading the Constitution for active learning.
The Professors: Chaloka Beyani of the London School of Economics, Melvin Mbao and Cephas Lumina both based in South Africa, submitted one of the most powerful amicus brief I have ever read in the ConCourt to assist the court in one of Zambia’s most historically, politically and legally important case of public interest: the third term eligibility case involving among others Dr Sishuwa Sishuwa. I do not need to rehearse how important that case was. The debate was raging like a wild fire and that case nearly tore the country apart. No one, except those with short memories, can forget the debates going on whether the Danny Pule case was correctly decided and what precedent it was setting for Zambia.
The amicus brief was ably filed by the law firm of Messrs Mwenya and Mwiitwa Advocates in the case of Legal Resources Foundation Limited, Dr Sishuwa Sishuwa, Chapter One Foundation, Petitioners And Edgar Chagwa Lungu, the Attorney General, Respondents ( 2021/CCZ/0025 and 2021/CCZ/0027). The filing was pursuant to Section 12 of the Constitutional Court Act and Order 9, rule 20 of the Constitutional Court Rules.
There was an election to be held on August 12, 2021 and the outcome was somewhat tied to the outcome of the decision of the court on the eligibility case. So, the case was of overwhelming national interest which could forever foreshadow the democratic ethos of the country’s future. At that time, the country’s political and legal temperature was boiling. It was not a theoretical or academic exercise. It was not like in hindsight where it felt like a bad dream from which one has just woken up. It was real. Public lectures on the third term eligibility were being disrupted by the government of the day through political cadres. Lawyers like John Sangwa, SC, and Linda Kasonde, former president of the Law Association of Zambia were being harassed and threatened. Dr Sishuwa was hounded and even harassed by his own university and even by a Zambian ambassador. Everybody should remember that period.
It was at that time that the three eminent Zambian professors launched their amicus application to be friends of the court. They canvassed helpful jurisprudence from all over the world on the issue of the third term and on matters of constitutional interpretation jurisprudence. The professors urged the court to read that jurisprudence for guidance and assessment and that jurisprudence pointed to one conclusion only: Danny Pule was wrongly decided and that the president would be entering a third term, unquestionably a third term which was prohibited by the Constitution as amended.
How did the ConCourt react to this powerful amicus filing which, if considered and digested, would have led to a different ConCourt decision than the one it eventually came to? The ConCourt completely ignored the amicus application. The ConCourt never responded to that amicus application. The professors wrote a letter asking why their application was not being adjudicated on. The ConCourt never responded even to that letter. I have that amicus application and I have that letter as the ConCourt and perhaps hundreds of people in Zambia. One of the professors informed me that the amicus application was never dealt with, nor was the letter asking for a response from the court. It is one thing to dismiss an application for amicus standing, it is another thing to completely shut out the application and therefore public interest, barring the doors of the court to the public. It is at the discretion of the court to dismiss applications after assessing them, but that discretion must be exercised judicially. Refusing to assess and to make a ruling on an application properly before the court is not acting judiciously. It is injudicious and conduct unbecoming of the judiciary.
It is my opinion that the reason the ConCourt did not entertain and indeed shut the professors’ amicus brief is that if the court judiciously assessed that brief and the overwhelming jurisprudence contained therein, they would have come to a different decision which would have gone against the president of the day. The ConCourt did not want that. The ConCourt had already prejudged the case and didn’t want to be swayed any other way. Thus, the only way was to ignore and not entertain the amicus application in anyway.
It has taken me a long time to consider whether I should write this article until now. It is something I take seriously. I believe circumstantial evidence is on my side and the professors’ cited jurisprudence and my discussions with learned legal and political professionals is on my side. It is not like there were overwhelming applications for amicus standing and that the professors’ application was superfluous. It was the only amicus application and if entertained would have been the most on point and the most helpful. The amicus application must be distinguished from applications for intervenor status in support or in opposition to the application or petition before court. Amicus is neutral friend of the court with powerful recommendations based on careful review of the relevant jurisprudence. I have never seen such jurisprudence from diverse jurisdictions being placed before the court in Zambia before. And I practiced law in Canada for 25 years and attended court at the highest levels and courts entertained amicus and intervenor applications without reserve. The courts there prefer all the assistance they can get in overwhelming national, public or international interest litigation. I have read a lot of amicus and intervenor applications in Canada and the US and elsewhere and these are done in good faith to help the court.
Here we had the most helpful amicus application shut out of court in the most pressing case of national importance, by a young inexperienced court! A court that relied on its own Pule case which had no jurisprudential foundations whatsoever! I have at hand the decisions of the Malawian courts allowing amicus standing to the law society of that country and other parties. I have decisions of the Kenyan courts doing the same.
Courts all over the democratic world allow amicus and intervenor status. The ConCourt’s decision is an anomaly, and given the disturbing rationale for this anomaly, it is my submission that the ConCourt must be disbanded or a ConCourt Court of Appeal be erected over that court in order to prevent further miscarriages of justice. If the ConCourt behaved that way in shutting out an important amicus brief in 2021, the ConCourt can do it again at the sufferance of Zambian democracy. The shutting out of the professors’ amicus brief means that the ConCourt has prevented the development of Zambian jurisprudence on constitutional interpretation and has prevented the role of eminent jurists and scholars from being a source of law. Learned jurists and scholars create law from their writings and submissions in court. The ConCourt by preventing the professors from contributing to the creation and development of constitutional law jurisprudence in the impugned area of law has committed an act unbecoming of the judiciary. If there is anything I have forgotten or misstated, I stand to be corrected. I rest my case.
Dr Hamalengwa is the author of “The Politics of Judicial Diversity and Transformation” and other works, and recently, “Commentaries on the Laws of Zambia”.