LAZ president Eddie Mwitwa on Tuesday failed to live up to people’s expectations when he ducked most of the questions from the audience during a public discussion on separation of powers at Southern Sun Hotel.
Mwitwa, who from time to time quoted the law to avoid some of the questions the audience asked during a discussion forum organised by the News Diggers and OSISA, said the separation of powers was an important means by which the constitution guards against tyranny and/or dictatorship by government.
He said although not expressly stated, it was plain that framers of the Zambian Constitution wanted separation of powers to be part of the governance system.
“In this regard, like many other democratic countries, the Zambian Constitution has established the three arms of government namely, legislature, the executive and the judiciary. However, there is no total separation of powers between Parliament and the Executive. Parliament and the Executive are nonetheless most totally separated from the judiciary in the performance of judicial authority. I say almost because the judiciary’s budget has to be ratified by Parliament and when the President ratifies the budget, the judiciary has to get its funding from the Ministry of Finance, which has proved to be a challenge in the recent past,” Mwitwa said.
He said LAZ hoped all branches of government would constantly adhere to their respective constitutional functions for the sake of protecting the liberties of Zambians as well as bettering their lives.
“While separation of powers is key to the workings of any democratic government, it is widely accepted that no democratic system exists with absolute separation of powers or, and, absolute lack of separation of powers,” Mwitwa said.
He said citizens also had the power to provide checks and balances over government and elected representatives through the ballot.
“This is one of the greatest powers and privileges the constitution has given to citizens. We need to do our part in promoting separation of powers by claiming our rights and demanding good governance,” Mwitwa said. “In Article 2, the Constitution stipulates that every person has a right and duty to defend the Constitution. This duty is not a preserve of lawyers or the judges, it is the duty of every citizen and every inhabitant of our God given nation.”
Failure by the PF chairperson for legal Brian Mundubile and Minister of Justice Given Lubinda to attend the discussion prompted the organisers to opt for PF media director Antonio Mwanza to represent them.
However, most people in the audience, among them People’s Party president Mike Mulongoti, were unhappy that Mwanza was the one representing the government.
“I did not expect him to sit in front, we don’t expect him to talk to us on this topic,” said Mulongoti to the applause of the people.
This prompted News Diggers! Editor Joseph Mwenda to explain why Mwanza found his way to the front .
“Ladies and gentlemen, perhaps we should take part of the blame for not clarifying why Mr Mwanza is here. We literally asked him to come; he came as a member of the audience. We had actually passed on an invitation through him to the Patriotic Front for legal committee. We also invited the Minister of Justice, we also invited other cabinet officials but they were unable to come and then we thought that seeing Mr Mwanza here, he could actually be able to respond to some of the questions and this is an open forum discussion. It’s not a press conference for the Law Association of Zambia, we would like to hear the views of other participants as well. The only thing we could appreciate if honourable Mulongoti would like to be on the high table as well, we would be very glad to have him here, we have more chairs. It doesn’t matter where Mr Mwanza is seated, he was still going to be allowed to express himself but he is here to represent honourble Brian Mundubile, who is yet to come. Please understand and tolerate Mr Mwanza,” said Mwenda.
During the discussion, Fredrick Mulenga of the Human Rights and Amnesty said recruitment of judges should be advertised so that all those with credentials would be considered.
He said allowing the President and the Judicial Service Commission to meet and decide who to employ did not promote transparency and accountability.
The acting Dean of Law at Zambia Open University Dr Munyonzwe Hamalengwa sought clarity on information that judges being appointed were PF members or sympathisers.
He said the appointments of judges was in line with the PF constitution which states that it would appoint its members from people that were friendly or sympathetic to the party.
In response, Mwitwa challenged Dr Hamalengwa to take up the matter with the Constitutional Court owing to the gravity of the allegation.
He further reminded the audience that citizens had a duty to defend and protect the constitution.
“The issue that Dr Hamalengwa has brought up is a serious issue and my response to the first question as to whether as LAZ we have challenged the governance of our nation through the PF constitution, my answer is no, that is not something we have done and part of the reason is that, like I said, I have not read the PF constitution but I have read the Republican Constitution. And what I said in my presentation was that we as citizens have a duty to defend and protect this Constitution. So if there is any evidence that this is happening, the Constitutional Court is available to handle such grievances. Our appeal as the Law Association of Zambia is that we need to desist from making allegations and leaving them there. We must take these matters up with the courts. It doesn’t help for us to complain without exercising our right to be heard by the courts. Let’s test this constitution and let’s test our courts. In my own view, the judiciary is the most powerful or most important organ of the three arms of government when it comes to addressing grievances because it can be accessed by anyone. If you can’t afford a lawyer, the courts will help you draft your court documents. I would agree with you that what you said is indeed what is happening, it’s unconstitutional and it must be challenged,” Mwitwa said.
“I would challenge you Doc, to take up this matter with the Constitutional Court because they are serious allegations. If you are saying all judges that are being appointed are members of PF, for me that doesn’t auger well for our nation because judges are supposed to be non-partisan.”
But Dr Hamalengwa stood up to qualify his assertion in line with the PF constitution.
“Let me qualify that, the PF constitution says it will appoint its members so it follows inferential…inferential and as lawyers, we know what that means. It means only people who are friendly or are alleged to be sympathetic to the party…that’s what the PF constitution says,” said Dr Hamalengwa.
But Mwitwa said: “I must confess that I have not read the PF constitution and because I have not read it, I can neither deny nor confirm what you have said. But what I would request for you to do is highlight the provisions of the PF constitution that the government is using as opposed to the provisions as contained in CAP 1. Specify which provisions of the PF constitution the government is relying upon as opposed to constitutional provisions of the Republic.”
The submission of Dr Hamalengwa seemed to have pinched on wrong places on a number of PF cadres that attended the function.
PF Kabwata Constituency ward 7 treasurer Emmanuel Chanda said there was no way his party would apply its constitution to govern the country.
He also challenged Dr Hamalengwa to provide specifics of the PF constitution, which was being used by the government.
Chanda cautioned Dr Hamalengwa against inciting people to think PF was applying the provisions of the party constitution to govern the country.
Murmuring and pep talks continued as people exchanged views outside the master of ceremony’s influence but it was New Labour Party leader Fresher Siwale’s question on the qualification of Constitutional Court judges that sparked another round of debate.
In his submission, Siwale insisted that all Constitutional Court judges were not qualified to be in the positions they hold.
“Is the Constitutional Court in its current form a competent court of jurisdiction? Why I say so is that article 141 of the Constitution of the Republic of Zambia is very clear on the qualifications of judges and it clearly states 15 years experience in practice of constitutional law and human rights. All the judges on the bench of the Constitutional Court do not meet this minimum requirement of the Constitution. What it means is that all the judges have breached article 141 of the Constitution and the law is very clear that a person who breaches any article of the constitution overthrows the entire constitution. Now if all judges on the Constitutional Court have overthrown the Constitution of the Republic of Zambia, so which Constitution are they interpreting? I require guidance from the Law Association of Zambia as well as the law fraternity,” asked Siwale.
In response, Mwitwa said, “In response to the appointment of judges, I must say the situation that we have in Zambia is not unique to Zambia. In America the President appoints judges to the Supreme Court but obviously it has to go through the ratification process, through Congress. In South Africa, it is the same situation, the President appoints the judges subject to recommendation of the Judicial Service Commission. What is also interesting in relation to the appointment of judges is that the technical committee was appointed by the late president Michael Sata, deliberated on this particular issue, and looked at all the recommendations from previews constitutional making commissions and interestingly, the technical committee resolved to maintain this particular scenario. I don’t know why they did that. That was the view they took that situation was harmless but it appears we have a problem with it. As LAZ we also made our representations on the manner judges are appointed. My only appeal is that it is high time we started making use of our elected representatives in Parliament, we must engage our members of parliament when we see the need to amend these laws.”
On interpretation of 14 days in presidential petition, Mwitwa said, “I think that matter is still in court. The High Court is deliberating on that issue. Like I said, it’s the court that has the final mandate of interpreting these laws. We can only make submissions. The qualifications of the judges of the Constitutional Court, unfortunately this matter we were consulted by Parliament and we made our submissions but I am impeded from divulging our position here. You will recall Mr Siwale that one of our members, State Counsel John Sangwa, did express the same misgivings that you have expressed and he wrote to the President and his letter was circulated to the public but the appointments were done and from what I read in the Constitution, you can unfortunately not remove the judges on the Constitutional Court on any grounds rather than the ones I stated. It’s not me stating but it’s the Constitution and the other unfortunate part is that when judges are appointed, we are stuck with them until they turn 65 and they chose to retire or up to 70 years.”
At this stage, Siwale interjected with a question.
“Are you confirming that they were appointed outside the law? And when you breach one article of the constitution, you would have breached the entire constitution,” stressed Siwale.
But Mwitwa said. “That is not what I am saying sir…I have read the article and do agree with you that what you said is what it is saying. That is not for me to say unfortunately. I agree with the difficulties that you have expressed because…this is the difficulty we have with our Constitution. We have the Constitutional Court which is the final court, it is the court of original and final jurisdiction, so if you go to the Constitutional Court today and it says something about a matter, you have nowhere else to go to, you cannot appeal. And the situation you have alluded to, if you challenge the constitutionality of the appointment of Constitutional Court judges, which court are you going to go to?” asked Mwitwa to the murmuring of the audience.