Washing dirty linen in courts

The Judiciary has to stop allowing politicians from washing their dirty political laundry in our courts and hijacking justice in the process. The first casualty of this washing of dirty political laundry in our courts is the judiciary itself where its reputation lies in tatters, accused of incompetence, bias, compromised, hijacked and corrupt by the very politicians who take these cases to the courts in the first place: when they lose. The second casualty is justice. There is a huge backlog in the courts because judges are devoting themselves to accepting and deciding politicians’ dirty laundry instead of dispensing justice for the common person who really needs it.

Most political cases that are now suffocating our judiciary don’t belong there. They belong in the political arena where they originated in the first place. Not all political cases should end up in the courts. Intra-party squabbles don’t belong in the courts. Parties should be able to resolve their infantile and power and ego- driven tempests within their ranks through the ballot box, electronic or show of hands. If a politician is thrown out of the party, that must be it. There are provisions within party constitutions for the resolution of these internal disputes. It goes the same for some inter-party disputes. They should be resolved through alternative dispute resolution mechanisms. Because they can’t resolve them doesn’t mean another overburdened branch of government should be called in to superintend over these difficult questions, a branch that may not be necessarily equal to the task.

Some political disputes of course lend themselves to justiciability. For example the political application of the Public Order Act, the Anti-Corruption Commission Act; selective politically motivated prosecution and persecution etc, are within the province of the judiciary as are electoral malpractices resulting in the declaration of electoral victory of an undeserving candidate.

Some of these political cases, justiciable or not, are coming in at a furious rate that judges are bound to make mistakes or may be compromised in making these decisions. Today’s column is devoted to the surplusage of politically driven injunctions, some ill-founded and some manifestly ill-founded making the judiciary not smelling of roses.

The application of the law of injunctions has generated interesting results lately. From ancient times, the law has been clear as to when an injunction should issue. There is a conjunctive tripartite test: (a)there has to be demonstrated a serious issue with flexibility of accepting an arguable issue, (b) there has to be a demonstration of impending irreparable damage to the applicant side if the injunction is not issued, and (c)the balance of convenience must favour the applicant. This is not the place to expound on law of injunctions but a book by Sharpe, INJUNCTIONS AND SPECIFIC PERFORMANCE is a standard text and is in every judge’s Chambers. The British case of Cyanamide from the House of Lords is the world’s leading case on injunctions. Using the clear law of injunctions, the Minister’s case of continuing in office after the dissolution of parliament should have resulted in an immediate injunction. There was a serious/arguable issue; it was clear irreparable harm would enure to the applicants and the balance of convenience favoured the applicants. This is not hindsight. The issues were clear and the applicant lawyers argued so but the injunction was not granted. Subsequently, the trial resulted in the vindication of the merits of the injunctive application. But we are still suffering from the irreparable harm of the Ministers’ staying in office and utilising their positions to win seats using government resources and now resisting to pay back the money despite a court order. Irreparable harm is permanent and was foreseen.

Now the judiciary is being abused by the very people who created the Constitutional Court and gave it power to have its decisions non-reviewable. The attempts for collateral relief is an attempt to get through the back-door what could not be achieved through the front door. One of the principles of the rule of law is that there has to be an end to litigation of a case. The politicians are not satisfied with the decision of the very judges that they appointed. We might as well abolish the judiciary and simply accept the naked rule of Parliament and the Executive. But don’t abuse our judiciary. The judiciary should also refuse to be manipulated and abused. They should unfurl the gauntlet and order that enough is enough and pay up by a certain deadline in 2018 and not after 2021. It is time the judiciary took charge. Automatic deduction from the Ministers’ salaries is an option. Contempt of court is an option.

On the other hand, we have an injunction that has been issued on the impeachment case when the conjunctive tripartite test cannot be demonstrated in my respectful assessment. A competent PF Government Deputy Speaker in the National Assembly ruled that the impeachment motion was properly brought and met all political and legal requirements for filing except that the constitution did not set any timeline for tabling it. Then Parliament went into recess, meaning there was no urgency and no demonstrable or immediately impending irreparable harm to the PF and President Edgar Lungu. The Justice Minister Given Lubinda even averred that the motion may never see the light of the day or words to that effect. There was thus no doomsday irreparable damage in sight. There was no serious/arguable issue visible in this case. The balance of convenience did not favour the applicants because there was no impending harm at all. Locus standi of the applicants, is even in issue.

Thus it is a mystery why and how the impeachment injunction was issued, ex-parte nonetheless. Ex-Parte applications or motions are historically and legally granted only where certain conditions obtain: irreparable harm is perilously ongoing or is impending; in cases of restraining order; prevention of child abduction or flight from jurisdiction; prevention of depletion of resources or money; preventing withdrawal of money from accounts or transferring of money abroad; prevention of continuation of libel and destruction of reputations and similar situations of urgency. The impeachment injunction had no basis being allowed to proceed ex-parte. Compare this injunction to that which was denied in the Ministers’ stay in office case! Both cases are political. Who was favoured in both cases at the injunctive stage? Whose irreparable harm is in issue? Who got the thick end of any injustice in both cases?

The practice of hijacking the judiciary with political cases is now migrating to the Judicial Complaints Commission. If the politicians don’t like the Judge, they unleash another arm of the government to dislodge their perceived problem.

The judiciary has control of its jurisdiction. It can reject a case as raising political rather than legal questions or non-justiciable potpourri. In my respectful opinion, the intra-MMD factions struggle and the Kambwili expulsion case etc belong to that genre. The impeachment injunction case should have been thrown out as manifestly ill-founded. It had no business being granted ex-parte in the first place.

This process of weeding out cases could be done at the front end by a judicial case-monitoring team at each court level with brief reasons. In the Western World, they don’t even give reasons at this stage and there is no appeal. Let the politicians dance to the music of the judiciary and not the other way round. The politicians are transient in office, the judiciary have life tenure. They should therefore control their own jurisdiction and house, fearlessly according to their oath of office.

Dr. Munyonzwe Hamalengwa is a Senior Lecturer in Law, and is the author of The Politics of Judicial Duversity and Transformation, among other books.

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