President Donald Trump rode into town like a new Sheriff and in the old frontier days of Cowboys and Indians, everybody and everything would clear the way as he rode through the main thorough-fare into the Sheriff’s office. The Sheriff made the laws, broke the laws as he saw fit, engaged in corruption and otherwise behaved without any accountability. Believe it or not, Trump rode into town as if he was a new Sheriff in town, a new Cowboy who could shoot up anybody and anything without accountability.
But there was a little problem that he didn’t expect to encounter – the little problem of the judiciary in a democracy. Just because you have won an election, whether through rigging, foreign power assistance and what not, doesn’t mean you can behave in any way you want. A democracy operates on the principle of separation of powers and checks and balances where each branch of government must travel in their own lane. In a democracy, the judiciary is usually not a push-over. And Trump met his match in the judiciary from Day One. Two years into his Presidency, after all the attempts to eviscerate the Rule of Law like no other President in American history, the judiciary is still giving Trump, the biggest headache he didn’t expect. This article is about the resistance of the judiciary under Trump. The implications for Zambia are embedded in the message of the article.
The American constitution, through the genius of various Amendments, provides for equal protection of all without regard to race, religion and so on. We know that the American constitution and its people have not lived up to the promises of the constitution but some judges from time to time take its declarations and spirit seriously enough to act as checks on Presidential and other executive and State actions. Trump had campaigned on the platform of anti-immigration as is the won’t of most Western racists and would-be extreme nationalist dictators and Hitlerists. Trump targeted his anti immigrant antics against the Muslims but the courts right in January 2017 when Trump was supposed to enjoy his honeymoon issued injunctions throughout the US enjoining Trump from implementing his anti-Muslim immigration policy. The Muslims are not a very popular minority in the Western World particularly since the 911 episode of 2001 but the judiciary, living up to their calling and the dictates of the constitution, could not abandon that unjustifiably vilified community. The constitution promises equal protection for all. The courts when they mean to do their business, are not moved by public emotions and antics of the day. They are not supposed to toy along the Presidential coat-tails no matter how popular or unpopular the President in office is. Two years later, Trump has not be able to implement his anti-immigrant policy 100 per cent.
Just in May 2019, a Judge in California issued a quick 56 page decision preventing Trump from building sections of an anti-immigrant wall in Southern US that he wanted to build using diverted Department of Defence funds that Congress had refused to appropriate for that purpose. Congress disburses the funds and not the White House. The President there has no Kasaka Kandalama. The Constitution is clear: only congress can authorise how much money must be apportioned to what causes and upon request. This prevents corruption in the use of funds if the President has total control of the use of funds.
That 56-page decision was written in a matter of days. Here we have the Constitutional Court failing to issue a decision on reconsideration of the ministers’ stay in office after dissolution of Parliament in 2016, on a case that the ConCourt had already ruled and issued a decision on, in August 2016. In April 2019, a Federal District Court judge in Washington DC, took only 6 days to write a sizzling 41-page decision denouncing Trump for his attempt to destroy centuries old law and practice that Congress has oversight powers on Presidential accountability. Here Trump had disregarded the subpoena issued to his accounting firm to disclose his financial records. Trump had argued that he was being harassed for political purposes and not pursuant to any legislative purposes. The District Court Judge issued an Order to the accounting firm to cough up the financial records. The case is on appeal and we shall watch its climb up the judicial ladder with baited breath. Trump has managed to staff the appellate courts and Supreme Court with his ideological surrogates so they may yet bail him out. Trump has berated all judges who have ruled against him as “Obama Judges” but the Chief Justice of the US has fired back in an unprecedented step that the US has no Obama, Bush, Clinton or any other judge, but simply hard working Judiciary fulfilling their constitutional mandate.
Many judges in the US have disappointed their appointing authorities by taking on occasion different trajectories than their appointing Presidents expected. John Roberts, an appointee of Bush was not expected to save Obamacare, but there he was casting the vote cementing the majority that saved that seminal legislation. Recently, Judge Brent Kavanaugh, a recent Trump appointee was expected to start his tenure supporting conservative causes on all cylinders. But one of his first decisions went against the grain, to the consternation of the conservative establishment, joining the Liberal wing that decided that individuals could file class action law suits against corporate giants like Apple Computer, instead of filing individual law suits as trial and appellate courts had decided. In that case, Apple had developed an App. costing US$20 but was selling it at an inflated cost of US$100. The lower courts wanted individuals to sue alone to claim the difference. This would have been costly. Class actions are more efficient and less costly to mount. The corporate world wants individual lower suits so they can bury individuals in paperwork for years. The loss of this lawsuit by Apple, with the support of the little guy by Justice Kavanaugh is big statement in the US that you cannot take a judge for granted in the US. Is the picture the same in Zambia?
This May 2019, a Judge took 10 minutes to issue a lengthy decision against Trump in another case where he was trying to resist a subpoena to make him accountable. In Zambia, can judges overrule a Presidential maneouvre of any type? Can judges in Zambia issue lengthy decisions 10 minutes after conclusion of an argument? Can judges issue 41 or 56 page decisions in six days because of the urgency of the matter at hand? I am aware of the difference in culture and support infrastructure as I am aware of the independence and autonomy of the judiciary in both cultures. In one, there is more support infrastructure as well as independence and autonomy of the judiciary. But this difference doesn’t explain everything that happens. Individual judges, as former Chief Justice Ernest Sakala explains in his LLM, make a difference. Attributes of a judge must also be internal no matter what the external circumstances maybe. In the US, a lot of judges have internalised their oath of office in a democracy.
The Sheriff who rode into Washington DC in 2017 thinking that he would sweep the Rule of Law and impose his own Code, has been stymied by a solid Constitutional backbone of the American Judiciary. Worthy of emulation in Zambia, not so.
Dr Munyonzwe Hamalengwa teaches and writes on Law.