When will the ConCourt and the Pre-2016 Election Ministers give the Zambians their money back? The Constitution of Zambia as amended dictates that Zambians are entitled to impartial, fair and speedy justice. The Constitution also provides, among numerous other rights, good governance under a democratic multiparty system.
The ConCourt ruled way back in August 2016, that is three years this August 2019, that the ministers stayed in office illegally after Parliament was dissolved for the then upcoming election of August 11, 2016. The ministers were ordered to pay back the money. There is no appeal from any ConCourt decision or order but the ministers launched what is really analogous to an appeal no matter what term has been used: reconsideration, revisitation, variation, rethinking etc. All types of arguments have been deployed to argue that the decision was wrong and the ConCourt should set aside its own decision. During 2016, 2017 and 2018, The Daily Mail, The Daily Nation and Times of Zambia were full of articles by different characters on why that decision was legally and politically unsustainable. Some arguments were so aggressive against the ConCourt decision and judges you would think some would have been cited for contempt since the ultimate decision was not yet handed down! We will wait until the decision is handed down to gauge whether the commentators had any effect on the tenor of the decision, difficult as it will be, given that the decision will be post facto.
The argument of this article is simply to state that the ConCourt and the ministers have deprived Zambian citizens of speedy justice guaranteed by the Constitution and Common Law by the overly delayed issuance of a decision to deny or agree to the ministers’ “appeal” of the August 2016 decision that spelt out clearly that the ministers had stayed in power illegally and must pay their emoluments back.
The ConCourt could have ruled within a day after the end of arguments a long time ago because this was not a hearing de novo (a new). It was simply a rehashing and refurbishment and fortification of previously argued points with new politically motivated zealousness. Political emotions do not win or should not win in a court of law. The test for the same court varying or setting aside its own decision is quite high and jurisprudence from around the world is hard to come by in which a court sets aside or varies its own legally entrenched decision. What new evidence did the ministers tender that would not have been available when the original decision was made? What genuine principle of law was ignored or overlooked by the Court after it had been argued before it by the ministers? Had there been a fraud on the court that led it to make an erroneous decision? The arguments by various interested parties in the media and in the court in my review of the same demonstrated no iota of those paradigm-shifting evidentiary points that move a court to reconsider, vary or set aside its just recently issued decision. Let me repeat: the arguments both in court and in the media before the decision has been made was aimed at influencing the court to reconsider, to vary or set aside its decision of August 2016. And no court is supposed to abandon legality and be influenced by arguments in the media or in the court. Judges must rule according to the law. My arguments here should not be seen as any different from all other arguments that have been made before the issuance of the decision.
The ministers have perverted the right to speedy justice by “appealing” a decision in essence when they know or ought to know that there is no “appeal” from the decision of the ConCourt. The Attorney General had argued that ministers should not continue in office once Parliament had been dissolved. He later, inevitably because of his office flip-flopped to argue that the ministers’ stay in office was legal. Such summersaults are not consonant with the principles of good governance and rule of law. In some jurisdictions, the minister or Attorney General who had expressed a correct legal position which ended up being accepted by the Court when deployed by the other side, would have tendered his resignation. It does not build confidence in the administration of justice when a minister argues contrary to a previously publicly expressed correct legal position. The public would be left thinking that there is no rule of law but purely political expedience shone of legality. The ministers’ stay in office is pure politics and the law be damned!
Putting aside everything else, who benefits from this overly delayed judgment? Who is responsible for this delayed judgment? I had speculated in writing before that the Luo and Mwanakatwe decisions would only be released if they were in favour of Luo and Mwanakatwe. In my view, those decisions were wrongly decided and they have set electoral jurisprudence back to the Stone Age. They will have to be reconsidered and set aside in the future. Look at how long those decisions took to render! I had also speculated in writing that the Presidential election petition decision would only be released if the Court found in favour of Presidential eligibility. Look how long that decision took to render. It is one of the most painful decisions I have ever read and I have read a lot of decisions in my life. It is in my view wrongly decided and it will be set aside in the future. That decision is not in conformity with the tenets of constitutional interpretation. I had also speculated in writing that both the impeachment motion in Parliament and the dialogue process will not materialise and now study what is happening on those fronts. Now I predict that the decision on ministers’ stay in office and the repayment of the monies back will not be released unless the earlier decision is set aside or varied. If it is released, and it is against the government, it will only be released like the one before, on the eve of the next election in 2021 and no matter what the outcome of that election is, the ministers will never pay the money back. This government has never lost a key case in the ConCourt excerpt the ministers’ case. Now they want to win it at all costs. Will the government try to recruit the court to side with it despite the court having rejected the government’s position in August 2016? My opinion is that that is what is causing the delay in issuing the judgment in violation of the constitutional principle of speedy Justice.
The ConCourt must be made to issue the decision immediately. There are no new issues to ponder over in that case. It is a very simple case, complicated only because of the politics involved, which politics must be rejected ab initio. The law must take its own course. Justice delayed is justice denied. All judges know this cliche. Delayed Justice has consequences. The ConCourt or any court is not above the law. Speedy justice is a constitutional imperative in democratic countries. That money could help pay university lecturers and civil servants so that they can continue to teach our students and to pay their mortgages and necessities of life. There are a lot of students who depend on the payment of salaries on time to their relatives and parents in order for them to meet their own school fees including examination fees. We recently sent an eminent Dr Manasseh Phiri to a hospital in South Africa. We need the ministers’ money given back so that we can meet some of the Doctor’s medical costs. We are paying Honourable Mulongoti’s hospital bills in South Africa. Part of that money should be coming from the money illegally held by the pre-election 2016 ministers. We need that money in order to start building state of the art modern hospitals in Zambia so that we no longer have to send Dr Phiri, Honourable Inonge Wina, Honourable Mulongoti and all other politically-connected people to foreign hospitals for treatment at great expense.
The interest that has accrued from the money the ministers owe is astronomical. We need that accumulated interest plus any costs that may be awarded because of the gamesmanship by the ministers. What stands in the way of getting that money back immediately are the ConCourt and the ministers who have frustrated the constitutional imperative and dictate of speedy justice and good governance. As already stated that case shouldn’t have taken this long to dispose of.
It is in the public interest and the interests of justice to have that decision rendered now so that we get our money back immediately. It is time to call the shots for judicial and ministerial accountability.
Dr. Munyonzwe Hamalengwa teaches Criminal Law; Law of Evidence; and Research and Writing Methodologies in Law.