In the Mwelwa v Attorney General Case, the Constitutional Court has Reaffirmed Judicial Independence

There was a very fundamental reason why I got involved when the judiciary suspended a Livingstone based magistrate in 2016. Magistrate Mwelwa was suspended by the Judiciary’s Chief Registrar, Mr. Charles Kafunda. At later dates, Mr. Mwelwa got suspended again by another official from the judiciary. I wrote the Chief Justice on this matter. I have to date not received a response. However, Mr. Mwelwa took the matter to the Constitutional Court and the Court issued a blistering ruling against Mr. Charles Kafunda and the judiciary on March 14, 2019. To summarise the Constitutional Court’s ruling: what Mr. Charles Kafunda did in suspending Mr. Mwelwa was unconstitutional and illegal. Mr. Mwelwa has been awarded some money for the state’s action.


The Constitutional Court’s ruling in the Mwelwa v. Attorney General case is very significant. First, it affirms an important tenet of the rule of law that Zambian adjudicators, from judges to magistrates, to all those involved in adjudication, should be constrained only by the law and constitution in the discharge of their duties. Specifically, the independence of the judiciary predicates from the independence of its courts. Magistrates and judges should be free to make decisions in their courts without the fear of administration retaliation. When some of our fellow citizens, including myself, raised these issues with the Chief Justice, we received tremendous pushback.  We are glad that with Magistrate Mwelwa’s persistence, the judiciary has been set straight, no less by one of its courts.


Second, the ruling shows that the courts are willing to confront unreasonableness in its ranks. It must not have been easy for the Constitutional Court to rule against their own Registrar in this matter. But had they not stood up for the rule of law, who would? There is glimmer of hope in the Zambian judicial system and it is to decisions like this that we can get some rays shining out of the darkness. The Constitutional Court is also issuing what I can call an institutional conversation between itself and the Supreme Court. The administration of the judiciary should know that the Constitutional Court is not going to bend towards the wishes of its administration, it will have as its fidelity, the Constitution of Zambia.


The third element coming from this ruling is one more important pragmatic theory in the administration of justice. How should courts, judges, and magistrates relate to lawyers outside the courtroom? The judiciary apparently has charged Magistrate Mwelwa with an additional disciplinary case for appearing with or for fraternising with defence counsel in the matter he was handling. The Constitutional Court has not made a ruling on the appropriateness of this charge. Instead, the Court appear to have left this issue to the judiciary and the judicial service commission to resolve. I wish the Constitutional Court had made a ruling on this question as well. While it is true that Magistrate Mwelwa’s subsequent suspension for fraternising with defence counsel was not pleaded before the Court, the judges still had the liberty to pronounce the law on that point because it was emanating from the same facts. In my opinion, disciplining a magistrate for fraternising with counsel appearing before him is inappropriate. Members of the bench and members of the bar are friends. In most cases, the bench is made up of former members of the bar. In a town like Livingstone that has a very small bar, it would not be unusual for the bench and the bar to know each other personally. By disciplining and suspending a magistrate for fraternising with lawyers, the judiciary seems to be sending the message that there should not be a personal relationship between adjudicators and the bar. This concept is pragmatically untenable. Lawyers are not their clients. Lawyers represent their clients before magistrates, but lawyers do not become their clients before the magistrates. The idea that magistrates and lawyers should never have a personal relationship with each other is flawed. Nothing stops Magistrate Mwelwa from fraternising with counsel outside court. If we took what the judiciary is saying to its logical conclusion, it would mean that judges must stop having friends among the bar.


It is inappropriate for Magistrate Mwelwa to be fraternising with an accused that is appearing before him. But this does not extend to the lawyers that are representing the accused. If, say Magistrate Mwelwa takes tobwa, katata, or whatever drink with some lawyers in Livingstone, you cannot stop him from fraternising with counsel on the basis that the same counsel is appearing before him. Again, lawyers are not their clients.


I do understand that this remaining charge will come before the Judicial Service Commission where Magistrate Mwelwa has been summoned to appear. Such an appearance is most probably illegal and unconstitutional. I wish the Constitutional Court had pronounced itself on this matter. The Judicial Service Commission appoints magistrates, but once appointed, magistrates become members of the bench and their discipline must fall under the constitutional safeguards that ensure their independence. Magistrates facing discipline should be disciplined by the judicial complaints commission or a body carrying out such functions. In our constitutional framework, appointment does not confer the appointer with the seized duty to discipline the appointee. The president and parliament appoint judges. But that is it. The President does not remain seized with the power to discipline judges. The power to discipline judges is done by a different body that ensures judicial independence.


Corrupt judges and magistrates must be flushed out of the judiciary. But in so doing, the law and the constitution must be followed. To ensure complete and total independence of the courts, it is important that the judiciary follows the law and the constitution when it decides to discipline the corrupt in its ranks. And we are very glad, that the Constitutional Court has agreed with us. If Mr. Kafunda had any integrity left in him, he should be tendering a resignation. He cannot stay after such a blistering ruling from the Constitutional Court. Judicial independence is alive and well, and the Constitutional Court has affirmed it.


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