Professor of Law, Cornell University Law School,
Cornell University USA,
Honorary Professor of Law Universities of Cape Town, Western Cape and Free State, South Africa.
I write to support the position of Elias Chipimo and the Law Association of Zambia in their condemnation of President Lungu’s irresponsible attacks on the judiciary. This attack, I dare say, is yet another frontier in the creeping dictatorship and arrogance of power by the President in Zambia. This is an epic depiction of unbridled ambition for power – reminiscent of the Shakespearean depiction of such characters as Macbeth who are ready to destroy even what they have, the constitutional duty to protect so long it helps their appropriation of state powers. The attack on the judiciary is irresponsible and for a lawyer, it is inconceivable to do so.
Hence, it is my view that this is a deliberate attempt to further undermine the essential foundations of the rule of law and justice in Zambia. It is particularly puzzling and indeed puerile that a lawyer could equate party regulations for standing for party presidency with constitutional provisions that govern the presidency.
The first is governed by a party document and the other by the grundnorm of the state – the Constitution. It is rather elementary even for those with basic knowledge of civics that “The principle of the separation of powers is the bedrock upon which the requirement of judicial independence and impartiality are founded” (International Commission of Jurists, 2004). The Judiciary is not a junior partner in the machinery of state because it has full plenitude of powers under the constitution and other statutes to carry out its duties in a democratic society. Its powers are imprescriptible to the extent that they are prescribed by constitutional provisions. Nothing, even the widest discretionary executive powers can whittle down this independence of the judiciary. It is therefore, sufficiently an erosion of the judicial foundations of democracy for the President to dishonor and make contemptuous threatening remarks about the judiciary. It is the textbook exemplar of dictatorships – first of all kill all the lawyers, second jail all the opposing voices, declare emergencies and in all these co-opt the judiciary or send the judges to Auschwitz. Does it sound familiar with the catastrophes of dictatorships we have seen before?
Now, was it perhaps the failure of the legal education institutions that have led to this? I doubt. Education is the development of an entire person. It is the acquisition of skills to view things rationally and with reason, to conduct oneself with civility and integrity and to navigate the world through a knowledge-based lens. If education was to blame, many of us would be complicit having served as law educators for decades. It is then that I reminded myself of the words of Lord Acton, “That power corrupts and absolute power corrupts absolutely.”
President Lungu betrays the judiciary when he implies that the judiciary is independent only when its rulings favor him or the government. He confirmed this by his warning to the judiciary “not to follow Kenya.” This is sheer hubris. His remarks are not only ill-conceived and ignorant but simplistic because they focus on the result and do not seek to understand the jurisprudence of the Kenyan decision and do not enlighten us as to what in his view is wrong legally with the Kenya Supreme Court decision. Additionally, his understanding of Kenya’s history is at best selective for it is the same Kenyan Supreme Court, and the same Kenyan judges, that decided for Kenyatta in the 2013 election petition. The emergence of a strong and independent judiciary in Kenya is rooted in its history and willingness to learn from the past. The absence of an independent judiciary was a critical factor in Kenya’s degeneration into bloody, post-election violence after the December 2007 general elections. That episode taught the Kenyans the importance of an independent judiciary.
As for the President’s surrogates who immediately went into top gear to attack in the most degenerate manner anybody who criticised Lungu over his remarks, it is best to ignore them. They should learn the lessons of history; because it is not unusual for those who fete the tiger to become the tiger’s ultimate feast. These supporters are too blinded by the allure of primordial prejudices to see the grievous harm being done to democracy in Zambia today. Nothing else can explain the cant and cascading absurdities being mobilized by these hirelings in support of Lungu’s attack on the Judiciary. I do not know how anyone with average intelligence can interpret what President Lungu said as meaning anything other than threats and intimidation against the Judiciary. One would have thought that it is better to admit wrongdoing or keep quite than to talk and so reveal your mediocrity and grossly shallow understanding of the issues at hand.
For the avoidance of doubt, threats to hold on to power regardless of the Constitution and court rulings borders on a conspiracy to commit treason. It violates the oaths of office subscribed to by all public office holders in Zambia including the President. Indeed, treasonable conduct, has always included unconstitutional retention of power. The African Charter on Democracy, Elections and Governance (ACDEG) adopted by the African Union (AU) in 2007 to promote democracy, rule of law and basic human rights declares in article 5 that “state parties shall take all appropriate measures to ensure constitutional rule, particularly constitutional transfer of power”. It defines unconstitutional change of Government in article 3 as; “(a) any refusal by an incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; or (b) any amendment or revision of the constitution or legal instruments which is an infringement on the principles of democratic change of government.” In most countries, the Minister of Justice would have sprung to the defense of the judiciary. Members of the judiciary are not members of the Parliament and cannot therefore defend themselves in Parliament. Judicial ethics do not allow them to speak to the press about judicial matters. Representing them in Parliament is the task of the Minister of Justice. Unfortunately, the current Minister of Justice, a non-lawyer, is out of his depth. His naïve and rhetorical comments on the Constitution making process expose his limitations in his understanding of legal issues. The current speaker of Parliament – though a lawyer has abandoned all pretense to respect for the law and constitutionalism for political opportunism – is unable to guide the Minister. His behaviour eloquently proves the point made by Alexander Hamilton, one of the most prominent of the founders of the US constitution, concerning the supremacy of the US constitution. Among other things Hamilton said: “To avoid an arbitrary discretion in the courts (I would add Speakers of Parliaments), it is indispensable that they should be bound down by strict rules and precedents…. These mast demand long and laborious study, to acquire a competent knowledge of them. Hence it is that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge”. The speaker does not possess the requisite integrity and requisite knowledge. He seems to fit into the category of those representatives who can destroy democracy through their obeisance and subservience to the executive. I hope Parliamentarians recognize the duty incumbent on them to preserve democracy for the people. The clear abdication of duty seems to have bloated the hubris being orchestrated by the President.
In a democracy a cardinal principle of justice is that no judge, no lawyer and no citizen should be above the law, let alone be beyond the law. The judiciary in a democracy is central to constitutionalism, the protection of the rule of law and the protection of human rights and freedoms. It is also an essential check and balance on the other branches of government, ensuring that laws of parliament and acts of the executive comply with the constitution and the rule of law. As once noted by Alfred Deakin – Australia’s first Attorney-General – “the courts are the final authority on the interpretation of the constitution. Thus, the Australian High Court he noted should be made “a most potent voice.” It was to determine the powers of the Commonwealth, the powers of the states, and the validity of the legislation.” (Ponnambalam, 1998, 38).
2. Rule of Law and Democratic Governance
The “rule of law” is one of the most important political and legal conceptions in democratic governance. The concept assumes the existence of inalienable rights and liberties which government should not touch or violate. It is comprised of the following basic principles: that all state power ought to be exercised under the authority of laws, and that there should be rules of law governing the election and appointment of those who make and execute policy, as well as the manner in which policies are made and executed. It demands, that policies be executed in such a way as to ensure rationality and fairness. The rule of law connotes the use of state power, through rules of law for the establishment of the economic and social system agreed upon by the people via constitutionally sanctioned representative institutions or other acceptable surrogates. It calls for governance in accordance with the constitution. All power, whether of Parliament, the executive or the courts, must be exercised in accordance with the constitution, which is the final word on the powers and roles of each branch.
As Nwabueze has observed: “Liberty implies the limitation of power by law and the one institution above all others essential to the preservation of the rule of law has always been and still is an honest, able, learned, and independent judiciary” (Nwabueze, 1993:189). The maintenance of an independent and accountable judiciary is fundamental to constitutionalism and the protection of human rights. Integral to the rule of law and constitutionalism is the doctrine of the separation of powers. In democratic states, courts are asked to review government’s acts for compliance with fundamental rights.
Moreover, such a review being at the instance of an individual assures personal participation in government. In the famous case of Marbury v. Madison (1803), Chief Justice Marshall observed: “It is emphatically the province and the duty of the judicial department to say what the law is. Those who apply the rule of particular cases must of necessity expound and interpret the law. A law repugnant to the constitution is void. Courts as well as other departments are bound by that instrument.” The courts are the guardians of fundamental rights and provide a forum for public debate so that the exercise of public power by democratically elected persons remains accountable. Judges’ interpretations of the constitution and other laws support the rule of law and constitutionalism. Only an independent judiciary can effectively review governmental acts and ensure the constitutional guarantee of human rights.
The executive must at all times support the independence of the judiciary.
About a year after Nelson Mandela became President, the Constitutional Court of South Africa heard an urgent application [The Executive Council of Western Cape Legislature and Others v. President of South Africa and Others, Constitutional Court of South Africa, (1995) challenging legislation that purported to confer powers on the President to legislate, which President Mandela did by way of proclamations. The proclamations dealt with the vital local government elections that were soon to be held. An application was brought on the basis that the legislature may not empower the President to legislate and, to the extent that the President purported to do so, he acted in conflict with the Constitution. Mr. Mandela was named as one of the respondents. The challenge was successful. The Court held that the provision purporting to empower the President to enact legislation was inconsistent with the constitution; enacting legislation was a function of Parliament and not within the President’s powers. The Court came to this conclusion notwithstanding the fact that all political parties had agreed that the President should have the power to do what he did. In a remarkable display of leadership, the same day of the court’s decision, Mr. Mandela rushed to the television and radio stations and declared that, while he had signed the proclamation believing that he had the power to do so, he respected the decision of the constitutional court and appealed to all concerned to similarly accept the court’s decision. As George Bizos has lamented: “What a pity that many African leaders do not follow this example” (Bizos, 2011).
Some in the Government would argue that the power vested in the judiciary to set aside the laws made by a legislature constitutes a subversion of democracy. In response, I would draw upon the words of the Constitutional Court of South Africa in the case involving a challenge to the Presidential appointment of Simelane as head of the South African National Prosecution Authority – Democratic Alliance v. The President of South Africa and Others (2012), (which in turn quoted former Chief Justice Mahomed’s words to the International Commission of Jurists):
That argument is, I think, based on a demonstrable fallacy. The legislature has no mandate to make a law which transgresses the powers vested in it in terms of the Constitution. Its mandate is to make only those laws permitted by the constitution and to defer to the judgment of the court, any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court (Constitutional Court, 2011).
The same observations are valid for the executive branch. It too lacks a mandate beyond that which is granted to it by the constitution. The executive can only do what it is authorized by the constitution to do. The determination of whether an executive action is constitutional is a judicial matter – in other words, it is a matter constitutionally left to the courts to decide. Executive actions are, therefore, properly subject to judicial review to determine their compliance with the constitution. This process of checks and balances among the branches of government supports the rule of law, constitutionalism and democratic governance.
3. Judicial Independence
It is beyond dispute that to sustain a democracy, an independent, impartial and upright judiciary is an absolute necessity. Therefore, the constitution, laws and policies of a country must ensure that the justice system is truly independent from other branches of the state. Judicial independence is recognized in many international and regional human rights instruments as one of the cornerstones of good governance. The principle is also enshrined in all democratic constitutions. It involves two tenets; (a) judicial power must exist as a power separate from and independent of, executive and legislative power and (b) judicial power must repose in the judiciary as a separate organ of government, composed of persons different from and independent of those who compose the executive and legislature.
As the US Supreme Court observed in O’ Donoghue v. United States (1933):
If it be important to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows as a logical corollary, equally important, that each department should be kept completely independent of the others-independent not in the sense that they shall not co-operate to the common end of carrying into effect the purposes of the constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other department .
The principle of the separation of powers was further underscored in the South African Constitutional Court Judgment S. v. Mamabolo (E.T.V. and others intervening) (2001). In the words of Justice Krigler: “In our constitutional order the judiciary is an independent pillar of the state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially under the doctrine of the separation of powers. It stands on an equal footing with the executive and legislature as pillars of the state.” As Sandra Day O’Connor of the US Supreme Court has similarly observed: “Judicial independence is the vital mechanism that empowers judges to make decisions that may be unpopular but none the less correct” (O’Connor, 2008). In so doing, the judiciary vindicates the principle that no person, or group, however powerful, is above the law.
An independent judiciary requires both that individual judges are independent in the exercise of their powers, and that the judiciary as a whole is independent from wrongful interference by the other branches of government. As to the independence of individual judges, there are at least two avenues for securing that independence. First, judges must be protected from the threat of reprisals, so that fear does not direct their decision-making. Second, the method by which judges are selected, and the ethical principles imposed upon them, must be constructed so as to minimize the risk of corruption and outside influence. Thus, the first endeavor is to protect judicial independence from outside threats, and the second is to ensure that judicial authority is not abused and it is the core concern of judicial accountability. To permit judges to be independent means that they must be left alone by the other judges, including the Chief Justice, to make their own decisions. Should superior judges disagree with a lower court’s judgment, the appeal process enables the superior courts to have a bite at the case.
Yet independence comes at a price e.g. denial of promotions or transfers to remote duty stations. In spite of such challenges, judges and magistrates must recognize that they are duty bound to provide society with the highest possible standards of service and commitment, and that a failure to maintain this is rightly a matter of public concern. That means the judiciary and judges must be accountable. Independence does not mean that judges can decide cases according to their personal preference. To the contrary, judges have a right and duty to decide cases before them according to the law, free from fear of reprisals of any kind.
An independent and honorable judiciary is indispensable to the rule of law. If judges are to be the independent guarantors of the rule of law values, they must be incorruptible. Judges are entrusted with ultimate decisions over the life, freedoms, duties, rights, and property of citizens. Judges will never win the respect and trust of citizens if they are subject to corrupt influences. Whenever a judge makes a decision for personal gain, or to carry favor, or to avoid censure, that judge and that act denigrates the rule of law. Further judicial accountability advances judicial competence. A fundamental value of the rule of law is that judicial decisions are not made arbitrarily, but through a process of reasoned decision making. The rule of law requires that decisions be justified in law, and therefore be reasoned, analytical, rational and non-arbitrary with respect to general legal standards. Independence, integrity and competence, then, are the hallmarks of a judiciary committed to upholding the rule of law and they are the principles to which a judiciary should be held accountable.
Experience has shown that the judicial role of interpreting legislation (as well as the constitution) can bring the courts into conflict with both parliament and the executive and make it the subject of harsh and bitter criticism. Constitutional adjudication is inherently controversial and political disputes inevitably enter the judicial arena. Yet it is inimical to the rule of law if political pressure is directed towards the judges by those who have not succeeded in the judicial adjudication or who wish to influence future decisions. Parliamentarians and ministers, like everyone else, must accept court decisions until they are either overturned by a superior court or through a constitutionally authorized process. They like anyone else are entitled to criticize a ruling and examine whether or not the ruling is legally sound but what is never acceptable is the making of vague allegations of improper motives for decisions, personal attacks on the integrity of individual judges or threats against their personal safety.
As Nwabuze has rightly observed one of the dangers to the African state is the privatization the state. The notion of the state under an absolute one-man rule being treated by the president as if it were his or her private state-as if he owned it, with state affairs becoming practically indistinguishable from the strictly personal affairs of the ruler, with all institutions and powers of government being absolved in him or her, and with impromptu decisions and actions based on his or her personal whims and caprices being subscribed for regularized government decisions-taking processes and procedures. And we may add the undermining of the judiciary so that justice is seen to flow from the president and celebrations of the goodness and greatness of the president (equally mandatory in the public and private sectors) replace other forms of legitimacy. Perhaps we are not yet there but all indications, such as the assault on the judiciary, indicates that we are almost there. If we are to stop this downward descent, we have to insist on the separation of powers and independence of the judiciary as non-negotiables. Only a truly independent judiciary, free of pressure from, and indebtedness to, political parties, public officials, interest groups, and popular whims can be truly accountable to the public it serves.
I conclude with a piece of advice which is directed at those who wish to join the judiciary. Take heed of the eternal words as found in the scripture “…you shall not show partiality, and you shall not accept a bribe, for a bribe blinds the wise and subverts the cause of the righteous. Justice, and only justice you shall follow…” (Deut. 16:19-20). This piece of advice was given over 3,000 years ago. It is as sound today as it was at the time it was given.