My thesis is that the tattered reputation of any judiciary or level of court can only be redeemed by itself, by answering the critics directly or indirectly through various means including judgments.
The reputation of the Constitutional Court of Zambia is perhaps irraparable. It hasn’t helped that the court has been mute. This past week as I was sitting and reading newspapers on a patio at one of Lusaka’s beautiful malls, I saw Honourable Ngosa Simbyakula emerge through one of the exits to the mall. I know Hon. Simbyakula
well. I had recently hired him as a Senior Lecturer in Law at Zambian Open University School of Law, though the Government snatched him right back after a few months and sent him to Washington, DC as Zambia’s Ambassador. Simbyakula’s uncle (older brother of his father), Cyprian Simbyakula was married to my father’s young sister until death did them part. The Simbyakulas are from Bansanje, a few kilometres from Chikuni mission and from my home.
As I saw Simbyakula I stood up and greeted him, “Honourable how are you?”. He looked and answered back, “Hi, how are you” as he continued walking towards his car. Shortly thereafter, a total stranger came and asked me, “who is that Honourable?” I told him who it was and he further asked, “what is he doing here?”. I replied, “here at the mall, I don’t know, I didn’t ask him”. “I don’t mean at the mall, in Zambia at this time!” the man retorted. I calmly told him, “Simbyakula is Zambian, isn’t he?”. The man now spelt out quite clearly where he was going, “maybe he is here to help this Concourt to write the predictable decision to be delivered on December 7. Wasn’t this the Minister of Justice at the time the Constitution was amended and didn’t he participate in the selection of these judges that are totally unqualified according to Article 141 of the Amended constitution?” Clearly the man was learned.
For me, this was an amplified and megaphone-volume-type of teachable moment how this constitutional court has lost its standing in educated quarters about its jurisprudential trajectory. Any judge or court that is predictable even before the decision has been announced has totally lost the confidence of the people. After the decisions on Munali and Lusaka Central election petitions, were announced, social media and certain newspapers were full of buzz that the decisions were predictable. The picture of predictability of the anticipated decision on the eligibility of President Lungu to run for third term was voluminously displayed in social media and in certain newspapers after the announcement that the decision will be rendered on December 7. The person who approached me at the mall is a major signal of the loss of confidence in our judiciary that some people think that the decisions are written elsewhere. The November 22, 2018 issue of Diggers at page 9 contain disturbing summaries of the disrepute our Concourt is regarded. Social media is full of similar discord and predictability of decisions from the Concourt.
The evidence of disrepute is gigantic. There was slippage, though disputed that the leaders knew about the Concourt decision on Ministers staying in power before the decision was made, leading the President to sign certain documents in anticipation and knowledge of the decision. The denial was not convincing to the knowledgeable public. As we write now, some people already know the decision. Or attempts are made to break the code. Sometimes friendly judges themselves leak the decisions to the powers-that-be. In my research for my 589-page book, The Politics of Judicial Diversity and Transformation (2012), I came across a lot of judicial shenanigans everywhere about political decisions, not based on the constitution or evidence but purely political considerations.
Our Concourt has been under severe attack from every angle. The President once warned the court not to be adventurous by imitating the Kenyan Supreme Court that had invalidated the presidential election there. There was uproar from the Rule of Law constituencies, but not from the judiciary itself. When the High Court nullified the election result of a well known Minister, a Presidential aide threatened the court with Kenyan-style reforms of the judiciary as they were now taking on political roles. The judiciary remained silent. Is the judiciary intimidated or it doesn’t care? Both are calamitous for the Rule of Law.
The opposition leaders have called the judiciary corrupt. The Concourt has remained mute. The Supreme Court cited some people for contempt of court and the results of that citation are known. But that can’t be a long lasting solution in this day and age of judicial accountability.
The predictability of the judiciary including the High Court and Concourt in political matters is evidenced by the fact that every case including the right to be heard and the swearing-in into office of the leaders have all been dismissed. Apart from the belated delivery of the Ministers-in-Office decision which in any case helped the status quo, no decision by the Constitutional Court has gone against the government. I stand to be corrected here. This is 99 percent success rate by the government. In Canada the success rate by the government is 60 to 65 per cent. In the US it is about 50 to 55 per cent. In South Africa, the government loses more often than it wins. The 99 percent government success rate in the constitutional court of Zambia is an anomaly for an independent and autonomous judiciary. This is one irrefutable yardstick that the Zambian Constitutional Court is not independent or autonomous. No court gives that kind of success rate to the government, especially given the fact that the lawyers for the opposition are some of the top constitutional lawyers in the country and in light of the fact that the constitutional court judges have been adjudged by the Law Association of Zambia and some top constitutional lawyers as totally unqualified to be judges if the criteria in Article 141 of the Constitution of Zambia, as amended are taken into account.
The old defence against attacks on the judiciary that the judiciary cannot answer back but can only answer through judgments, is now not tenable, it is old and history. In the United States recently, the Chief Justice of the United States, John Roberts answered the attacks on the judiciary by President Trump. That exchange was captured by most newspapers around the world including in Zambia. I need not reproduce it. In Canada, former Chief Justice McLaghlin answered former Prime Minister Stephen Harper, blow by blow when the Prime Minister tried to blame the judiciary for a decision that went against the nominee the PM wanted to appoint to the Supreme Court of Canada.
In South Africa, Chief Justice Mogoeng Mogoeng arranged and had a meeting with then President of South Africa, Jacob Zuma, for the latter to dissuade his ministers from politically attacking the judiciary. One powerful communist and ANC minister Gwade Mantashe defended his attacks on the basis of exercising his freedom of speech. In this day and age, you cannot prevent judicial criticism. Of course the criticism must be evidence based and not devoid of support. Criticism engages freedom of speech constitutional rights.
Thus the judiciary can defend itself outside the judgments. They can also speak through a public relations officer. The Concourt can only redeem itself against attacks by defending itself plausibly like other courts do. In Zambia, the urgency for redemption is palpable as the Concourt’s reputation is non-existent. Many Zambians think it is so predictable and a waste of time to go there. The mother of all battles is the anticipated decision of December 7, 2018. Will the people and the constitution be proved wrong? Will the judiciary and the constitution be proved right? Will all doubt from any and all quarters removed about the character of our Concourt? The point of no return will be reached. The rubicon will be crossed. Will it be a season of justice and redemption or of the great betrayal?
Dr. Munyonzwe Hamalengwa is the Acting Dean at the School of Law, Zambian Open University who started writing and researching on the world’s judiciaries in 1985.