This article discusses the dangers, futility and limits of engaging the Judiciary in some critical matters of legal and political importance in which the judiciary is supposed to excel but where it abdicates responsibility because of the fear of the consequences of their decisions or because of political threats from the status quo. Sometimes it is because the judiciary or at least components of it are allied to the powers-that-be and cannot exercise the tools of judicial autonomy and independence.
Robert Martin declares that the judiciary is the most dangerous branch of government for it exercises jurisdiction over matters without being elected and second guesses those who were actually elected. The danger can go both ways in my view, especially when the judiciary aligns with the status quo to engage in repression. Engagement in exercising powers of contempt by the judiciary can be a dangerous game in the prevention of the exercise of freedom of thought, expression, conscience, protest, exchange of ideas and debate by citizens.
Contrary to Robert Martin, Benjamin Franklin opined that the judiciary is the weakest branch of government because it neither controls the purse nor the gun to enforce its jurisdiction. We know how governments in new or aspiring democracies can ignore court orders with impunity knowing the judiciary can do nothing about it. We saw this recently in Kenya where the government ignored judicial orders involving an opposition politician. In Zambia the orders of a Tax Appeals Tribunal involving the Post newspaper were ignored. The shenanigans about ministers’ stay in office is an aspect of disobeying a judicial decision by pretended extended and false litigation. But the same judiciary that is so helpless and weak in relation to the government, awakens to the occasion when it is a simple weak individual at the receiving end. Powers of contempt are invoked. In advanced democracies, governments tremble at judicial decisions and obey them. We should inculcate that paradigm in Zambia.
Jeffrey Rosen is of the view that the judiciary is the most democratic branch of government because of the power of deliberate and dispassionate deliberation. However, in Zambia this becomes too excessive when decisions are not handed down for years rendering the litigation moot or unjust. There is no deliberate and dispassionate deliberation. It is judicial fear and paralysis.
Richard Posner has proffered the view that the judiciary is not any special institution, it is composed of elites that are subject to economic and market forces like all others and its members are prone to “auditioning” for promotions and professional stability like everybody else. This is the school of ”economic analysis of law”. Judicial behaviour stemming from this dynamic has to be understood before one embarks on litigation.
The above frameworks are necessary to have raised in order to put in context why “shooting” to court for every controversy is dangerous. The judiciary doesn’t exist in a vacuum.
There is vast literature which is hardly touched on by those whose immediate reaction to any legitimate or illegitimate criticism of the judiciary or legal or political controversy is to recommend the immediate trip to the judiciary. The judiciary is not a panacea for all legal controversies. Going to the judiciary may be the most dangerous, futile and uselessly expensive route for the resolution of legal disputes. At the same time, when there is no revolution, going to court in repressive regimes with a judiciary attuned to the rule of law, can be the most empowering resolve under the circumstances. It is a dialectic. It was demonstrated so in instances under Apartheid in South Africa, in the USA under apartheid-like conditions in the 30s, 40s and 50s and in Pakistan under the rule of the Generals and in post-911 emergency in the US.
When Oginga Odinga, an opposition leader in Kenya complained of electoral rigging in Kenya in August 2017, President Uhuru Kenyatta dared him to seek remedies in court. Kenyatta got more than he bargained for. The Supreme Court of Kenya became the first court in Africa to strike down as fraudulent a declared electoral victory of a sitting President. That sent tremors in the hearts of African leaders. That is how a true independent and autonomous judiciary must behave. But that was an exception to the rule of how African judiciaries behave.
So as to return the judiciary to its usual and normal cocoon, President Kenyatta as did President Edgar Lungu in Zambia, threatened the judiciary with dire consequences if they ever strayed to dangerous legal and political waters. The judiciary should stay, they reasoned, the weakest branch of government.
In Zambia the opposition travelled the route recommended by all rule of law adherents: to seek judicial remedies for an alleged stolen election of August 2016. The judiciary did not disappoint, engaging in somersaults not known in judiciary history to terminate the petition in favour of the status quo. Should the opposition have gone to court knowing the normal judicial behaviour when it comes to election outcomes? The Kenyan decision, an aberration, came later.
Regarding the stay of ministers in office, President Lungu dared the malcontents to go to court because as a lawyer and President, he knew he was right. The courts proved him wrong in August 2016 but the case is still in court more than 2 years later and the Ministers have refused to pay so far and the judiciary cannot do anything about it. The weakest branch of government, no command of the purse or gun is in full bloom. The government can continue to engage in litigation because they are using tax-Payer money. It costs nothing to them. An individual would have long gone bankrupt. Those who recommend going to court do not factor-in, the costs of litigation and delayed costly judgments. They do not factor-in, the frameworks of judicial predilections with which I commenced my analysis.
On September 11, 2018 at a Forum on “Separation of Powers: Parliament versus the Judiciary”, Law Association of Zambia (LAZ) President Mr. Eddie Mwitwa justifiably and characteristically advised every critic of the government and judiciary to seek judicial remedies. That is the right thing to do in a democracy governed by the Rule of Law.
Now do you think that that same judiciary that opposition leader Fresher Siwale claims is constituted in violation of article 141 of the 2016 amended Constitution can give Siwale the remedy he seeks, that is to disband the Constitutional Court? Article 141 relates to the qualifications of judges to be appointed to the Constitutional Court. It is claimed the President violated the Constitution ab initio by violating Article 141 in his choice of appointments contrary to the advice of John Sangwa, SC and LAZ. This is the same court that has already been warned by the President not to be reckless in its decision about whether or not the President is eligible to stand a third time in 2021 or concerning the Presidential election petition of 2016 assuming it is still alive somewhere in the judicial system. Can this judiciary be entrusted with exercising judicial autonomy and independence under the circumstances extant in Zambia?
Can someone feel inspired to go to court when the annulled elections in Munali and Lusaka Central in 2016 are still floating in courts without resolution after more than half of the election cycle has already gone and with Ministers in these constituencies enjoying the perks of power? This is after the Executive had expressed displeasure at the judiciary in annulling these particular seats and threatening “Kenya-style” judicial reforms, whatever that means for obduracy?
Can anyone feel confident in going to court when the powers-that-be keeps reminding the country that there are no time limits to anything: there is no time limit to tabling the Impeachment motion; there is no time limit for appointing the required number of Constitutional Court judges(13); there is no time limit for deciding cases that come before the courts or are already in court etc. How can one feel confident in going to court when the time-worn truism that “justice delayed is just denied” is more honoured than dishonoured in practice in Zambia? No one heads or should head in the direction in which nothing happens. What is happening to the judiciary in Zambia?To go to court or not to go to court is the question.
Dr. Munyonzwe Hamalengwa is acting Dean of Law at the School of Law, Zambian Open University.