The weight of stability: a rebuttal to Prof Hamalengwa’s rejoinder on vacating the Danny Pule precedent
By Dr Lawrence Mwelwa
Let me begin my response by expressing my concerns about the tone and emphasis in Professor Munyonzwe Hamalengwa’s article.
His argument appears to be politically charged rather than grounded in a purely academic discourse. For instance, the phrase “whether Dr Mwelwa likes it or not” is repeated twice, reflecting a confrontational stance that detracts from the neutrality expected in scholarly debate. Furthermore, Prof Hamalengwa asserts or strongly implies at least six times that the Danny Pule decision will be vacated, citing its perceived flaws and its alignment with the patterns of historically overturned precedents. His confident predictions about the decision’s eventual reversal convey an impression of prescience, suggesting an air of inevitability that raises questions about the objectivity of his argument.
Prof Hamalengwa’s argument for vacating Zambia’s Danny Pule precedent aligns it with historically vacated rulings such as Dred Scott, Plessy v. Ferguson, and Roe v. Wade. He identifies shared characteristics, including controversy, judicial dissent, and societal reverberations, contending that these factors signal Danny Pule’s eventual reversal. Furthermore, he asserts that vacated precedents often fall under new political regimes or judicial compositions, framing Danny Pule within this historical pattern. While Prof Hamalengwa’s argument is rich in historical references, it misconstrues the principles underlying vacated precedents and their applicability to Danny Pule. Unlike the systemic injustices corrected in cases like Plessy and Dred Scott, Danny Pule does not reflect a misinterpretation of Zambia’s constitutional provisions or broader inequities.
Prof Hamalengwa’s outlined principles for vacating precedents—controversy, dissent, reverberations, shifts in political regimes or judicial composition, perceived injustice, and inherent flaws—are overly broad and fail to provide a substantive legal basis for overturning the Danny Pule precedent. Controversy and criticism, while often accompanying landmark decisions, are not reliable indicators of legal error. Courts are tasked with interpreting the law, not appeasing public opinion. Similarly, dissent, though integral to judicial discourse, does not invalidate majority rulings; its role is to provide an alternative view for future jurisprudence, not to undermine the stability of settled law.
The argument that precedents align with political or judicial changes conflates political convenience with legal necessity, disregarding the judiciary’s obligation to transcend political cycles and safeguard constitutional consistency. Furthermore, the claim that vacated precedents reflect “inherent flaws” relies on hindsight bias, presuming that all criticised decisions are destined for reversal—a premise unsupported by the endurance of many controversial rulings. These principles, while historically observed in some cases, are neither definitive nor universally applicable, and they fail to address the specific constitutional and jurisprudential merits of Danny Pule, which was grounded in clear and reasoned interpretation of Zambia’s Constitution. To apply these generalised principles without rigor risks undermining the rule of law and judicial independence.
Below, I address the flaws in his reasoning and demonstrate why upholding the Danny Pule precedent is critical to the stability and credibility of Zambia’s judiciary.
1. Controversy alone does not erode precedent
Prof Hamalengwa suggests that controversy surrounding Danny Pule is sufficient grounds for vacatur, drawing parallels to decisions like Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896). However, controversy is not an indicator of legal error. Courts are not meant to reflect public sentiment but to interpret and uphold the law. Chief Justice John Marshall’s assertion in Marbury v. Madison (1803) remains relevant: “It is emphatically the province and duty of the judicial department to say what the law is.”
The Danny Pule decision clarified the constitutional definition of a presidential term under Articles 106(3) and 106(6)(b) of the Zambian Constitution. While controversial, this was a product of sound legal reasoning and not a failure of judicial interpretation. Controversy reflects the significance of the decision, not its instability. To vacate a precedent based solely on public dissent would undermine judicial independence and render the judiciary vulnerable to transient political pressures.
2. Dissent is a natural feature of judicial process, not a signal of error
Prof Hamalengwa highlights dissent in Danny Pule as evidence of its instability, likening it to dissents in Plessy and Dred Scott. However, dissent is a natural and essential part of judicial deliberation. As Justice Oliver Wendell Holmes observed, “The life of the law has not been logic; it has been experience.” Dissent provides a platform for evolving jurisprudence but does not inherently invalidate majority decisions. For instance, Justice Harlan’s dissent in Plessy famously argued that “Our Constitution is colorblind.” While his dissent contributed to the eventual overturning of segregation in Brown v. Board of Education (1954), it was societal and legal shifts—not dissent alone—that warranted vacatur. Similarly, the dissent in Danny Pule reflects a robust judicial debate but does not undermine the majority ruling, which was grounded in a clear constitutional interpretation. Unless proven unconstitutional, majority decisions must stand as the guiding framework.
3. Controversy and litigation reinforce stability, not instability
Prof Hamalengwa argues that Danny Pule planted the seeds of its own reversal through controversy and repeated litigation. However, history demonstrates that highly litigated decisions often endure because they clarify pivotal legal questions. For example, Miranda v. Arizona (1966), which established the Miranda rights, has faced repeated challenges yet remains a cornerstone of American jurisprudence because of its clarity and legal utility.
Similarly, Danny Pule addresses a crucial question of presidential eligibility. Its repeated litigation underscores its importance, not its vulnerability. Zambia’s constitutional framework depends on clarity to avoid governance crises. Overturning Danny Pule would introduce uncertainty into electoral processes, leaving the judiciary vulnerable to accusations of partisanship and creating long-term instability.
4. Political shifts must not influence judicial independence
Prof Hamalengwa asserts that vacated precedents often fall under new political regimes, citing Dred Scott and Korematsu v. United States (1944). While this observation is historically accurate, judicial independence requires that courts transcend political changes. Judicial decisions must remain grounded in constitutional fidelity, not political expediency.
Professor Hamalengwa’s advocacy for vacating precedents appears rooted in political processes rather than legal principles such as jurisprudential or international law developments, relying on political leaders to determine what constitutes good law. His strong criticism of the Dan Pule case reflects a perspective shaped by political rather than purely legal considerations, in contrast to cases like Kopa v. University Teaching Hospital Board of Management (SCZ No. 8 of 2007), which, despite controversy over its application of the Bolam Test, remains unvacated likely due to its lack of political alignment.
The Kenyan Supreme Court’s decision in Raila Odinga v. Independent Electoral and Boundaries Commission (2017) is instructive. In nullifying a presidential election, the court affirmed its independence from political influence, declaring, “The greatness of any nation lies in its fidelity to the Constitution.” Zambia’s judiciary must uphold this principle by ensuring that its rulings are guided by legal principles rather than transient political dynamics. Overturning Danny Pule solely because of a new political dispensation would erode public trust in the judiciary and undermine its role as an impartial arbiter of justice.
5. Historical vacatur: misplaced comparisons
Prof Hamalengwa draws heavily from the history of vacated precedents, such as Dred Scott and Plessy. However, these cases were overturned to correct systemic injustices and egregious moral failures. Dred Scott was vacated through constitutional amendments (13th and 14th Amendments), while Plessy was overturned by the landmark decision in Brown. These reversals were driven by evolving societal norms and legislative reforms that directly addressed the injustices enshrined in the original rulings.
By contrast, Danny Pule addressed a technical constitutional question regarding presidential term limits. It did not perpetuate systemic injustice or violate fundamental rights. Prof Hamalengwa’s comparisons oversimplify the unique historical, moral, and legal imperatives that necessitated vacating the cited precedents. There is no comparable moral or legal failure in Danny Pule to justify its reversal.
6. Judicial stability and public confidence
Prof Hamalengwa contends that Danny Pule undermines judicial stability. On the contrary, the decision has reinforced the judiciary’s role as an impartial interpreter of constitutional provisions. Judicial stability depends on consistency, not capitulation to controversy. As justice Robert Jackson noted in West Virginia State Board of Education v. Barnette (1943), “The Constitution is not a panacea for every blot upon the public welfare, nor should it be judicially distorted to meet the wishes of a transient majority.”
Vacating Danny Pule without compelling legal justification would weaken the judiciary’s credibility and expose it to accusations of political bias. The rule of law demands that courts uphold established precedents unless clear constitutional or jurisprudential errors are identified.
Conclusion: the necessity of stability
Prof Hamalengwa’s argument for vacating Danny Pule is an engaging exploration of judicial history but fails to address the specific constitutional and legal context of Zambia. Controversy, dissent, and political change are insufficient grounds to challenge a decision grounded in constitutional fidelity.
Judicial independence requires that courts act as pillars of stability, interpreting the law without succumbing to external pressures. The Danny Pule precedent provides clarity and predictability in Zambia’s legal framework, ensuring stability in governance. Overturning it would undermine the rule of law and erode public confidence in the judiciary. As Zambia navigates its democratic journey, its judiciary must uphold constitutional principles and resist the temptations of revisionism. The integrity of the Danny Pule precedent is a testament to this commitment and must be preserved.
The author is an academician, politician, musician, and revolutionary writer. He holds a PhD in Political Science. Send feedback to:
lmwelwa@gmail.com